United States v. Raciel Rodriguez-Cruz, No. 11-3436 (8th Cir. 2012)
Annotate this CaseCourt Description: Criminal case - Sentencing. Anders cases. Defendant Cruz knowingly and voluntarily entered into an appeal waiver, and his appeal is dismissed; the district court did not err in denying defendant Jauregui's request for safety-valve relief based on its determination that he had not provided a complete and truthful proffer.
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 11-2942 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Raciel Rodriguez-Cruz lllllllllllllllllllll Defendant - Appellant ___________________________ No. 11-3436 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Moises Pulido Jauregui, also known as Manuel Rivera De La Paz lllllllllllllllllllll Defendant - Appellant ____________ Appeals from United States District Court for the District of Minnesota - St. Paul ____________ Submitted: September 7, 2012 Filed: September 11, 2012 [Unpublished] ____________ BYE, GRUENDER, and BENTON, Circuit Judges. ____________ PER CURIAM. In these consolidated appeals, Raciel Rodriguez-Cruz and Moises Pulido Jauregui each appeals the sentence imposed by the district court.1 Each pled guilty to a drug offense and was sentenced to the applicable statutory minimum prison term of 120 months. Each of their attorneys seeks leave to withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967). In Rodriguez-Cruz s case, counsel s Anders brief (1) suggests that RodriguezCruz did not knowingly and voluntarily enter into an appeal waiver contained in his plea agreement, and (2) raises issues related to Rodriguez-Cruz s sentence. Upon careful review, this court concludes based on Rodriguez-Cruz s own statements at his change-of-plea hearing that he knowingly and voluntarily entered into the appeal waiver. See Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997) (defendant s statements made during plea hearing are entitled to strong presumption of verity). This court further concludes that the sentencing issues raised by counsel are within the scope of the appeal waiver and that the waiver is enforceable. See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (discussing enforceability of appeal waivers). Finally, having reviewed the record independently under Penson v. Ohio, 488 U.S. 75 (1998), this court finds no nonfrivolous issues outside the scope of the appeal waiver. 1 The Honorable Patrick J. Schiltz, United States District Judge for the District of Minnesota. -2- In Jauregui s case, counsel s Anders brief challenges the district court s determination that Jauregui was not eligible for safety-valve relief under 18 U.S.C. § 3553(f)(5) and U.S.S.G. § 5C1.2(a).2 Upon careful review, this court concludes that the district court did not err in determining that Jauregui was ineligible for safetyvalve relief. The district court s determination was appropriately based on a finding that in light of Jauregui s changing accounts over time, he had not provided a complete and truthful proffer of information. See United States v. Sanchez-Gonzalez, 643 F.3d 626, 630 (8th Cir. 2011) (in making assessment of truthfulness of defendant s prior statements, district court may consider discrepancies between defendant s statements as well as changes in his accounts over time); see also United States v. Soto, 448 F.3d 993, 995-96 (8th Cir. 2006) (district court s findings are reviewed for clear error as to completeness and truthfulness of defendant s safety-valve proffer; defendant has burden to prove that he qualified for safety-valve relief). Finally, having conducted an independent Penson review, this court finds no nonfrivolous issues. For the reasons stated, this court grants both attorneys leave to withdraw, dismisses Rodriguez-Cruz s appeal, and affirms the judgment in Jauregui s case. ____________ 2 Jauregui agreed in his written plea agreement to waive his right to appeal his sentence if the district court sentenced him at or below 108 months in prison. Because the court sentenced him to 120 months, the waiver did not become effective. -3-
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