Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-20-2007

USA v. Ventura
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4940




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Recommended Citation
"USA v. Ventura" (2007). 2007 Decisions. Paper 1456.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1456


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                                                                NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                      No. 05-4940



                           UNITED STATES OF AMERICA

                                            v.

                                   JOSE VENTURA,
                                     a/k/a POCHO,
                                      a/k/a POCHI

                                       Jose Ventura,
                                             Appellant


                     On Appeal from the United States District Court
                              for the District of New Jersey
                                (D.C. No. 03-cr-00746-1)
                        District Judge: Honorable John J. Lifland


                       Submitted Under Third Circuit LAR 34.1(a)
                                    March 8, 2007

   Before: SLOVITER and AMBRO, Circuit Judges, and POLLAK,* District Judge


                               (Filed : March 20, 2007)

                                       OPINION

SLOVITER, Circuit Judge.


                 *
                  Hon. Louis H. Pollak, Senior Judge, United States District
          Court for the Eastern District of Pennsylvania, sitting by
          designation.
       Appellant Jose Ventura was charged on February 11, 2003 with conspiracy to

possess and distribute cocaine in violation of 21 U.S.C. § 846. The charge arose out of

his activity on July 13, 2002 when he went to the Newark International Airport to meet

Gorabell Alicea, who was on a flight from the Dominican Republic carrying three bottles

containing 3,919 grams of liquid cocaine in her luggage. When questioned by law

enforcement agents, she stated that she carried the cocaine pursuant to an arrangement

with Ventura and that he promised to pay her $5,000 to make the trip.

       Ventura was questioned by federal officers on July 22, 2002. Ventura, who was

actively cooperating with law enforcement at the time, denied that he was at Newark

Airport on the day of Alicea’s arrival to meet her. He did state that Alicea had been

recruited for a drug smuggling operation headed by Edwin Ventura. However, after Jose

Ventura was arrested on February 11, 2003, he admitted he was involved in the

importation conspiracy and that in fact he was at the Newark Airport to pick up Alicea on

the day of her arrest. He also admitted that he had introduced potential drug buyers to

Edwin Ventura on several occasions.

       Apparently law enforcement officials permitted Ventura to remain at large while

he continued to cooperate. Finally, on October 23, 2003, he pled guilty to conspiring

with others to distribute and to possess with the intent to distribute more than 500 grams

of cocaine. It appears that he continued to cooperate with the Government while he was

at large, but he fled before the date set for his sentencing, July 23, 2004, and became a

fugitive. He was not arrested until May 23, 2005, more than a year later, and thereafter

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offered to resume his cooperation. This time the Government rejected his offer and

refused to move for a downward departure based on Ventura’s earlier cooperation.

       Thereafter, Ventura pled guilty pursuant to a plea agreement. The District Court

determined that Ventura was a career offender, and that his offense level accordingly

would have merited a sentence from 262 months to 327 months. However,

notwithstanding Ventura’s flight, the District Court reduced Ventura’s offense level by

three points for acceptance of responsibility, reducing his sentencing range to 188 to 235

months, and then further reduced the sentence by eight months in recognition of

Ventura’s previous cooperation. Accordingly, the District Court sentenced Ventura to

180 months incarceration followed by four years supervised release.

       Ventura’s counsel has filed a brief pursuant to Anders v. California, 

(1967). Under Anders, if, after review of the district court record and a conscientious

investigation, counsel is convinced that the appeal presents no issue of arguable merit,

counsel may properly ask to withdraw while filing a brief referring to anything in the

record that might arguably support the appeal. See 

744. To satisfy the

Anders requirements, appellant’s counsel must “satisfy the court that he or she has

thoroughly scoured the record in search of appealable issues” and then “explain why the

issues are frivolous.” United States v. Marvin, 

, 780 (3d Cir. 2000) (citation

omitted).

       Ventura was advised of his right to file a pro se brief in this court but he has not

done so. Thus, we are left with counsel’s statement that he has thoroughly examined the

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record for appealable issues, including issues pertaining to the voluntariness of

defendant’s plea, and he has asked for permission to withdraw as counsel.

       In order to fulfill our obligation to decide whether to accept counsel’s Anders brief

and permit counsel to withdraw, we review not only the brief itself but the record on

appeal, in particular the colloquy held by the District Court to determine whether the

guilty plea was entered knowingly and voluntarily, and that the defendant’s waiver of his

or her rights to indictment was knowing and voluntary. The District Court closely

examined Ventura. The Court asked Ventura about his background, his state of health,

whether he had been hospitalized or treated for narcotics addiction, whether he was

presently on any medication, and asked him whether he used any narcotic drugs within

the last twenty-four hours. Ventura responded that he never used drugs.

       In response to the Court’s questions, Ventura stated he had been furnished with a

copy of the charges, and those charges were read to him by the District Court. The

District Court, after advising Ventura of his constitutional right to be charged by a grand

jury, ascertained from Ventura that he understood his rights to indictment by grand jury,

that no threats or promises were made to get him to give up his right to indictment, and

that he thought it was the best thing for him to waive his right to indictment. The Court

then concluded that Ventura’s waiver of his right to indictment was knowing and

voluntary.

       Moving to the next issue, Ventura, in response to the District Court’s questions,

stated that he was aware of the written plea agreement, that he was pleading guilty of his

                                             4
own free will because he was guilty, that he understood the result of such a plea, and that

he knew the penalty was a statutory minimum of five years and a maximum of forty years

imprisonment, as well as a $2 million fine. Ventura also stated that he understood that the

sentence imposed by the Court after it had had an opportunity to review the presentence

report might be different from any estimate he had been given, and that the Court had the

authority to depart from the Guidelines and impose a sentence that is more or less severe

than that called for by the Guidelines. The Court advised Ventura that his agreement

waives or limits his right to appeal or collaterally attack the sentence and that his waiver

limits his right to appeal or attack his sentence. After some additional inquiry with

respect to the effect of the guilty plea, the Court then inquired of Ventura of the details of

the crime, in particular his recruiting of couriers to bring cocaine into the United States

from the Dominican Republic, and in that connection Ventura admitted that he recruited a

courier to bring cocaine into the United States on July 13, 2002. After an additional

inquiry with respect to Ventura’s knowledge of the crime to which he was pleading, the

District Court found that Ventura was fully competent and capable of entering an

informed plea, that he was aware of the nature of the charges and the consequences of the

plea, and found the plea was a knowing and voluntary plea.

       At the sentencing hearing the District Court determined that Ventura was a career

offender. He had two prior drug convictions and had been sentenced on both. The Court

noted that the two sentences are not related because they were separated by an intervening

arrest and the participants and other circumstances of the offenses were different.

                                              5
Accordingly, the Court determined that the instant offense to which Ventura pled guilty

was his third drug conviction.

       In his Anders brief, counsel conceded that the sentencing court properly calculated

the sentencing guidelines and made several discretionary rulings that were extremely

favorable to Ventura. The Court found that he was entitled to a three point reduction for

acceptance of responsibility despite the fact that he fled prior to sentencing. This

determination by the Court reduced Ventura’s minimum guideline range by seventy-four

months. In addition, the Court recognized Ventura’s cooperation and reduced the

guidelines an additional eight months even though the Government refused to move for a

reduction in sentence for cooperation.

       In his Anders brief, Ventura’s counsel reviewed all the arguable issues, and

determined that the District Court correctly found Ventura to be a career offender,

properly found the applicable sentencing range, which, after determining that Ventura’s

offense level was thirty-four with a criminal history category of VI, resulted in a

sentencing range of 262 to 327 months. Counsel also noted that the Court exercised its

discretion in favor of Ventura by finding that he had accepted responsibility under

Guideline § 3E1.1 and exercised its discretion in favor of Ventura by reducing his

sentence by eight months in recognition of his cooperation.

       We agree with counsel that there are no nonfrivolous issues raised. The plea

colloquy was adequate and Ventura gave a knowing, voluntary, and informed admission

to the charges and he knowingly and voluntarily waived his right to appeal. Following

                                              6
our independent examination of the briefs and the record, we conclude that counsel has

fulfilled his obligation under Anders. Accordingly, we will grant counsel’s motion to

withdraw and will affirm the judgment of sentence and conviction.

_____________________




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