United States v. A.Valenzuela-Montoya ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-2388
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri
Asension Valenzuela-Montoya, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: May 2, 2000
Filed: May 19, 2000
___________
Before McMILLIAN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
___________
PER CURIAM.
Asension Valenzuela-Montoya appeals from the final judgment entered in the
District Court1 for the Western District of Missouri upon his guilty plea to aiding and
abetting the possession of methamphetamine with intent to distribute, in violation of 18
U.S.C. § 2 and 21 U.S.C. § 841(a)(1). The district court sentenced appellant to 210
months imprisonment and four years supervised release. Counsel has filed a brief and
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). For
reversal, counsel suggests that the district court erred in (1) treating Valenzuela-
Montoya as a career offender because his prior controlled-substance felonies “do not
rise to the level of severity necessary to justify career offender status”; (2) denying his
downward-departure motion, in which he alleged that his criminal history was
significantly overrepresented; (3) denying the two-level downward departure
recommended by the government, which it based on Valenzuela-Montoya’s consent
to deportation; (4) treating certain seized currency as the proceeds of methamphetamine
sales and using it to calculate his offense level; and (5) imposing too harsh a sentence.
Although we granted Valenzuela-Montoya permission to file a pro se supplemental
brief, he has not done so. For the reasons discussed below, we affirm the judgment of
the district court.
First, we conclude that Valenzuela-Montoya was properly classified as a career
offender. The contention that his convictions for selling small quantities of cocaine are
insufficiently severe to justify career-offender status lacks merit, because the
convictions satisfy the Guidelines definition of controlled-substance offenses. See U.S.
Sentencing Guidelines Manual § 4B1.2(b). Next, we conclude that the district court’s
denial of both Valenzuela-Montoya’s and the government’s downward-departure
motions are unreviewable. See United States v. Hernandez-Reyes, 114 F.3d 800, 801-
03 (8th Cir. 1997); United States v. Shaw, 94 F.3d 438, 444 (8th Cir. 1996), cert.
denied, 519 U.S. 1100 (1997).
We need not consider the challenge to the district court’s treatment of the seized
currency because it did not affect Valenzuela-Montoya’s sentence: his offense level
was ultimately determined by virtue of his career-offender status. See United States
v. Darden, 70 F.3d 1507, 1548 n.17 (8th Cir. 1995) (declining to review argument
which would not affect sentence), cert. denied, 517 U.S. 1149 and 518 U.S. 1026
(1996). Finally, there is no jurisdictional basis for reviewing Valenzuela-Montoya’s
sentence merely because he considers it too harsh. See 18 U.S.C. § 3742(a) (grounds
-2-
for appeal of sentence by defendant). It was, in fact, at the bottom of the Guidelines
range. Cf. United States v. Woodrum, 959 F.2d 100, 101 (8th Cir. 1992) (per curiam)
(sentence not reviewable merely because it is at top of Guidelines range).
After review of counsel’s Anders brief, along with our independent review of the
record in accordance with Penson v. Ohio, 488 U.S. 75 (1988), we find no nonfrivolous
issues. Accordingly, we affirm the judgment of the district court, and we grant
counsel’s motion to withdraw.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-