USA v. Josimar Badillo-Ortiz

Filing

UNPUBLISHED OPINION FILED.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]

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.

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