United States v. Jose Moreno, No. 10-2078 (8th Cir. 2010)
Annotate this CaseCourt Description: Criminal case - Sentencing. Anders case. Argument that defendant should have received a mitigating-role adjustment is rejected as defendant received statutory minimum sentence, he was ineligible for a safety-valve sentence and the government did not move for a reduction based on substantial assistance; ineffective assistance of counsel claim would not be considered on direct appeal.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 10-2078 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Jose Del Carmen Hernandez Moreno, * * [UNPUBLISHED] Appellant. * ___________ Submitted: September 1, 2010 Filed: September 7, 2010 ___________ Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges. ___________ PER CURIAM. Jose Moreno appeals the 60-month prison sentence the district court1 imposed after he pleaded guilty to conspiring to distribute 50 grams or more of methamphetamine mixture. See 21 U.S.C. § 841(a)(1), (b)(1)(B) (5-year mandatory minimum prison term), 846. His counsel on appeal has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the court should have considered a mitigating-role adjustment under U.S.S.G. § 3B1.2. Moreno has 1 The Honorable Robert W. Pratt, Chief Judge, United States District Court for the Southern District of Iowa. filed a pro se supplemental brief challenging the Guidelines calculations and trial counsel s effectiveness. The Guidelines arguments are unavailing because the prison sentence imposed was the statutory minimum for the offense, the government had not moved for a lower sentence based on substantial assistance, and Moreno s possession of a firearm in connection with the offense made him ineligible for safety-valve relief. See 18 U.S.C. § 3553(e) (upon government s motion, court can impose sentence below statutory minimum sentence to reflect defendant s substantial assistance), (f) (court shall impose sentence pursuant to Guidelines, without regard to statutory minimum sentence, if court finds, inter alia, that defendant did not possess a firearm or other dangerous weapon in connection with the offense); United States v. Chacon, 330 F.3d 1065, 1066 (8th Cir. 2003) (only authority to sentence below statutory minimum is found in § 3553(e) and (f)). We decline to consider Moreno s ineffective-assistance claim on direct appeal. See United States v. Cain, 134 F.3d 1345, 1352 (8th Cir. 1998) (ineffective-assistance claim should be raised in 28 U.S.C. § 2255 motion). Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80 (1988), we find no nonfrivolous issue. Accordingly, we affirm the judgment, and we grant counsel s motion to withdraw. ______________________________ -2-
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