United States v. Ortiz ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4024
UBALDO VINCENTE ORTIZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-94-47)
Submitted: March 27, 1997
Decided: April 9, 1997
Before RUSSELL, LUTTIG, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Roger T. Smith, Asheville, North Carolina, for Appellant. Deborah
Ann Ausburn, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Ubaldo Ortiz was convicted of conspiracy to possess with intent to
distribute cocaine, 21 U.S.C. § 846 (1994), and was sentenced to
ninety-six months in prison. Ortiz now appeals his conviction and
sentence. His attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), raising several issues but stating that
in his opinion there exist no meritorious grounds for appeal. Ortiz has
filed a pro se supplemental brief raising additional issues. After a
thorough review of the record, we affirm.
In the Anders brief, counsel asserts that the district court erred
when it denied Ortiz's motion to suppress evidence seized during a
traffic stop in South Carolina. The record reveals that officers stopped
Ortiz because he was speeding. During a conversation with the offi-
cer, Ortiz verbally consented to a search of his rental car. He also
signed a consent to search form.
During the search, officers discovered $39,000 in cash secreted in
the car's trunk and other evidence linking Ortiz to members of a
cocaine conspiracy operating in North Carolina. Evidence at trial
revealed that Ortiz acted as a "mule" for the organization, transporting
cocaine to Asheville and returning to Florida with money to pay the
suppliers. Ortiz made four or five such trips, transporting approxi-
mately one kilo of cocaine on each trip.
The temporary detention of a motorist upon probable cause to
believe that he has violated the traffic laws does not violate the Fourth
Amendment prohibition against unreasonable seizures. United States
v. Whren, ___ U.S. ___, 64 U.S.L.W. 4409, 4413 (U.S. June 10,
1996) (No. 95-5841). As Ortiz was speeding, the stop in this case was
justified.
Once an officer effectuates a routine traffic stop, the officer may
request a driver's license and vehicle registration, run a computer
check, and issue a citation. Further detention is beyond the scope of
the stop and illegal unless the officer has a reasonable suspicion,
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based on the totality of the circumstances, of a serious crime. United
States v. Rusher, 966 F.2d 868, 876-77 (4th Cir. 1992). In this case,
the officer's observations and conversation with Ortiz prior to issu-
ance of the citation gave rise to a reasonable suspicion that criminal
activity was afoot. Ortiz appeared to be in a hurry. He was from
Miami, an established source of illegal drugs. He was driving south
on Interstate 95, a known thoroughfare for drug dealers, one day after
he had rented the car in Miami. Ortiz claimed to have been vacation-
ing in North Carolina with his family, but the vacation had lasted, at
best, one day.
Given these circumstances, the officer had reason to suspect that
criminal activity was afoot. After giving Ortiz the speeding ticket, the
officer was justified in inquiring whether Ortiz had anything illegal
in the car. The officer's request to search the car was also appropriate,
given his reasonable suspicion of criminal activity.
Ortiz verbally consented to the search, and he signed a consent to
search form. "A defendant who voluntarily consents to a search
waives his Fourth Amendment rights." United States v. Perrin, 45
F.3d 869, 875 (4th Cir. 1995). Ortiz argues that, because the officer
did not speak in Spanish, his consent to the search was invalid. How-
ever, the officer testified that Ortiz had no difficulty conversing with
him and never requested the officer to repeat anything that had been
said. Nor did Ortiz, who has lived in this country for over twenty
years, ever state that he did not understand what the officer was say-
ing. We conclude that his consent to the search was valid.
Ortiz, through counsel, raises several issues concerning his sen-
tence. He complains that his sentence was more severe than those of
many of his codefendants. This, standing alone, is not a valid ground
for departure under the guidelines. United States v. Ellis, 975 F.2d
1061, 1066 n.2 (4th Cir. 1992); United States v. Kant, 946 F.2d 267,
270 n.3 (4th Cir. 1991). Ortiz also contends that the district court
should have granted him more than a three-level downward departure
because of his serious health problems. As counsel acknowledges,
however, appellate courts are without jurisdiction to consider a dissat-
isfied appellant's challenge to the extent of a downward departure.
United States v. Hill, 70 F.3d 321, 324 (4th Cir. 1995). Finally, we
find meritless the contention that Ortiz's sentence violates the Eighth
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Amendment because, given his health, he may expire before his sen-
tence does.
Ortiz raises several issues in his pro se brief. The issues concerning
his sentence are duplicative of those raised by counsel. Ortiz also
claims that his counsel was ineffective because he was not bilingual.
As the record does not conclusively show that counsel was ineffec-
tive, this claim is not properly brought on direct appeal. United States
v. Smith, 62 F.3d 641, 651 (4th Cir. 1995).
In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm the convic-
tion and sentence. We deny the motion to withdraw as counsel and
deny as moot the motion for appointment of new counsel. This court
requires that counsel inform his client, in writing, of his right to peti-
tion the Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel's motion must state
that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the record and briefs, and oral argu-
ment would not aid the decisional process.
AFFIRMED
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