USA v. Josimar Badillo-Ortiz


UNPUBLISHED OPINION FILED. [16-10248 Dismissed as Frivolous] Judge: JLD , Judge: ECP , Judge: PRO Mandate pull date is 01/10/2017 for Appellant Josimar Badillo-Ortiz; granting motion to withdraw as counsel filed by Mr. Robert Jackson Herrington [8237965-2] [16-10248]

Download PDF
Case: 16-10248 Document: 00513805086 Page: 1 Date Filed: 12/20/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-10248 Conference Calendar United States Court of Appeals Fifth Circuit FILED December 20, 2016 UNITED STATES OF AMERICA, Plaintiff-Appellee Lyle W. Cayce Clerk v. JOSIMAR BADILLO-ORTIZ, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:15-CR-236-3 Before DENNIS, PRADO, and OWEN, Circuit Judges. PER CURIAM: * The attorney appointed to represent Josimar Badillo-Ortiz has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Badillo-Ortiz has filed a response. The record is not sufficiently developed to allow us to make a fair evaluation of Badillo-Ortiz’s claims of ineffective assistance of counsel; we therefore decline to consider the claims without Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 16-10248 Document: 00513805086 Page: 2 Date Filed: 12/20/2016 No. 16-10248 prejudice to collateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014). We have reviewed counsel’s brief and the relevant portions of the record reflected therein, as well as Badillo-Ortiz’s response. In his response, BadilloOrtiz disputes the drug quantity for which he was held accountable. BadilloOrtiz’s trial counsel did not object to the drug quantity at sentencing. Because drug quantity is a factual finding, and Badillo-Ortiz failed to properly object in the district court, Badillo-Ortiz’s drug quantity challenge cannot succeed on plain error review. See United States v. Conn, 657 F.3d 280, 284-86 (5th Cir. 2011). We therefore agree with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, the motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the appeal is DISMISSED. See 5TH CIR. R. 42.2. 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?