United States v. Orlando Ponce, No. 17-2092 (8th Cir. 2017)
Annotate this CaseCourt Description: Per Curiam - Before Loken, Murphy and Shepherd, Circuit Judges] Criminal case - Sentencing. Anders case. Ineffective assistance of counsel claim would not be considered on direct appeal; the district court did not err in calculating the applicable advisory guidelines range. [ November 09, 2017
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 17-2092 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Orlando Damian Ponce lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Eastern District of Arkansas - Little Rock ____________ Submitted: November 7, 2017 Filed: November 13, 2017 [Unpublished] ____________ Before LOKEN, MURPHY, and SHEPHERD, Circuit Judges. ____________ PER CURIAM. Orlando Damian Ponce directly appeals after he pleaded guilty to illegal reentry and the district court1 sentenced him to a prison term at the bottom of the 1 The Honorable Kristine G. Baker, United States District Judge for the Eastern District of Arkansas. calculated Guidelines range. His counsel has moved for leave to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the district court miscalculated the Guidelines range. Ponce has filed a pro se brief arguing that the court miscalculated the Guidelines range by failing to use the 2016 Guidelines manual, and that defense counsel failed to communicate effectively with him about the case. To begin, to the extent Ponce raised an ineffective-assistance claim, we decline to consider it on direct appeal. See United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir. 2006) (ineffective-assistance claims are usually best litigated in collateral proceedings, where record can be properly developed). Further, we find no error in the district court’s calculation of the Guidelines range. See United States v. Turner, 781 F.3d 374, 393 (8th Cir. 2015) (this court reviews district court’s application of Guidelines de novo, and its findings of fact for clear error); United States v. Menteer, 408 F.3d 445, 446 (8th Cir. 2005) (per curiam) (unobjected-to facts in presentence report are deemed admitted). We also reject Ponce’s Guidelines-manual argument because the district court used the 2016 Guidelines manual. In addition, we have independently reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), and have found no nonfrivolous issues for appeal. Accordingly, we grant counsel’s motion to withdraw, and affirm the judgment. ______________________________ -2-
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