Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-29-2009

USA v. Reyes-Ortiz
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4233




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 07-4233
                                     ____________

                           UNITED STATES OF AMERICA

                                            v.

                           LUIS ALBERTO REYES-ORTIZ,

                                                     Appellant
                                     ____________

                      On Appeal from United States District Court
                              for the District of New Jersey
                                 (D. C. No.: 07-cr-00530)
                       District Judge: Honorable Joseph E. Irenas
                                      ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 9, 2009

       Before: CHAGARES, HARDIMAN, Circuit Judges and ELLIS,* District Judge

                                (Filed: January 29, 2009)

                                     ____________

                              OPINION OF THE COURT
                                   ____________


HARDIMAN, Circuit Judge.


   *
    The Honorable Thomas Selby Ellis, III, Senior District Judge for the United States
District Court for the Eastern District of Virginia, sitting by designation.
       Luis Alberto Reyes-Ortiz pleaded guilty to a one-count information charging him

with unlawful reentry in violation of 8 U.S.C. § 1326. The District Court sentenced

Reyes-Ortiz to 41 months imprisonment and he filed this timely appeal. Counsel for

Reyes-Ortiz has moved for permission to withdraw pursuant to Anders v. California, 

(1968). We will grant counsel’s motion and dismiss the appeal.

                                             I.

       Because we write exclusively for the parties, who are familiar with the facts and

proceedings below, we will not revisit them here.

       When counsel files a motion pursuant to Anders, as counsel for Reyes-Ortiz has

done here, we determine whether: (1) counsel adequately fulfilled the Anders

requirements, and (2) an independent review of the record presents any non-frivolous

issues. United States v. Youla, 

, 300 (3d Cir. 2001).

       To meet the first prong, appointed counsel must examine the record, conclude that

there are no non-frivolous issues for review, and request permission to withdraw.

Counsel must accompany a motion to withdraw with a “brief referring to anything in the

record that might arguably support the appeal.” 

. Reyes-Ortiz’s

counsel identified five reasons why an appealable issue does not exist: (1) there are no

preserved defense objections; (2) there were no procedural errors in the guilty plea or

sentencing proceedings; (3) the District Court considered whether a sentence outside the

Guidelines range was warranted and determined that there was no factor to justify a non-



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Guidelines sentence; (4) the sentence imposed was reasonable; and (5) Reyes-Ortiz

knowingly and voluntarily waived his right to appeal his conviction and sentence.

       After Reyes-Ortiz was informed of his counsel’s intention to file an Anders brief,

he reiterated his prior request to challenge the sufficiency of the representation he

received in the District Court. We generally do not entertain ineffective assistance of

counsel claims on direct appeal; rather, “a defendant must raise ineffective assistance of

counsel in a collateral proceeding under 28 U.S.C. § 2255 in order that the district court

may create a sufficient record for appellate review.” Gov’t of Virgin Islands v. Forte, 

, 77 (3d Cir. 1986).

       We find that counsel’s discussion of the reasons why no appealable issue exists, as

well as Reyes-Ortiz’s ineffective assistance of counsel claim, meet the requirements of

the first prong of Anders.

       As for the second prong of Anders, we have independently reviewed the record

and we agree with counsel’s comprehensive analysis as to why no appealable issue exists.

       Accordingly, we will affirm the judgment of the District Court and grant counsel’s

motion to withdraw pursuant to Anders.




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