United States v. Joel Aguirre, No. 09-1582 (8th Cir. 2009)
Annotate this CaseCourt Description: Criminal case - Sentencing. Anders case. District court did not err in imposing a two-level increase for possessing a dangerous weapon under Guidelines Sec. 2D1.1(b)(1); nor did the court err by denying a minor- role reduction under Guidelines Sec. 3B1.2(b); no error in departing upward to Category VI criminal history under Guidelines Sec. 4A1.3(a); no error in denying a downward departure or a variance based on a claim of diminished capacity; claim of ineffective assistance is not properly raised in a direct criminal appeal.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-1582 ___________ United States of America, Appellee, v. Joel Aguirre, Appellant. * * * * Appeal from the United States * District Court for the * Northern District of Iowa. * * [UNPUBLISHED] * ___________ Submitted: December 29, 2009 Filed: December 31, 2009 ___________ Before BYE, BOWMAN, and BENTON, Circuit Judges. ___________ PER CURIAM. Aguirre challenges the 235-month prison sentence the district court1 imposed after he pled guilty to conspiring to distribute and possess with intent to distribute 50 grams or more of a methamphetamine mixture that contained 5 grams or more of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. His counsel has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the court erred in (1) applying a 2-level increase for possessing a dangerous weapon pursuant to U.S.S.G. § 2D1.1(b)(1); (2) denying a 1 The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa. minor-role reduction under U.S.S.G. § 3B1.2(b); (3) departing upward from a Category V to a Category VI criminal history under U.S.S.G. § 4A1.3(a); and (4) denying a downward departure or a variance based on Aguirre s diminished capacity. In his pro se supplemental brief, Aguirre echoes many of counsel s arguments and adds that his counsel was ineffective; he also moves for new appellate counsel. The foregoing arguments, which we address seriatim, fail for the following reasons: (1) the court did not err in imposing the weapon enhancement based on sentencing testimony from a government witness, see United States v. King, 518 F.3d 571, 575 (8th Cir. 2008) (witness credibility); United States v. Pizano, 421 F.3d 707, 732 (8th Cir. 2005) (standard of review and requirements for imposing weapon enhancement); (2) the court did not err in denying a minor-role reduction based on sentencing testimony that Aguirre negotiated drug prices, delivered drugs, and weighed them, see United States v. Carpenter, 487 F.3d 623, 625-26 (8th Cir. 2007) (standard of review); United States v. Cubillos, 474 F.3d 1114, 1120 (8th Cir. 2007) (distribution of drugs that were object of conspiracy was more than sufficient to show deep involvement in offense); (3) the court did not abuse its discretion in departing upward in light of Aguirre s extensive criminal history, see United States v. Gonzalez, 573 F.3d 600, 605-07 (8th Cir. 2009); (4) we do not review the discretionary denial of Aguirre s motion for a downward departure, see United States v. Utlaut, 497 F.3d 843, 845 (8th Cir. 2007); (5) the court sufficiently considered relevant sentencing factors under 18 U.S.C. § 3553(a), and did not abuse its discretion in declining to vary downward, see Gonzalez, 573 F.3d at 607; and (6) the ineffective-assistance argument is not properly raised in this direct criminal appeal, see United States v. RamirezHernandez, 449 F.3d 824, 826-27 (8th Cir. 2006). Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75 (1988), we find no nonfrivolous issues. Accordingly, we deny Aguirre s motion for new counsel; we grant counsel s motion to withdraw; and we affirm the district court. ______________________________ -2-
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