United States v. Joel Aguirre , 358 F. App'x 763 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1582
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Joel Aguirre, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 29, 2009
Filed: December 31, 2009
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Before BYE, BOWMAN, and BENTON, Circuit Judges.
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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. Ramirez-
Hernandez, 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.
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