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United States v. Jesus Cortez , 44 F. App'x 39 ( 2002 )


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  •                      United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-1008
___________
United States of America,                *
*
Appellee,                   *
* Appeal from the United States
v.                                 * District Court for the
* District of Nebraska.
Jesus Cortez,                            * [UNPUBLISHED]
*
Appellant.                  *
___________
Submitted: July 31, 2002
Filed: August 14, 2002
___________
Before WOLLMAN, FAGG, and, MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________
PER CURIAM.
Jesus Cortez pleaded guilty to conspiring to distribute and possess with the
intent to distribute methamphetamine, in violation of 21 U.S.C. § 846, and the district
court1 sentenced him to 60 months of imprisonment and 5 years of supervised release.
On appeal, counsel has filed a brief and moved to withdraw under Anders v.
California,
    386 U.S. 738 
    (1967). Cortez has filed a pro se supplemental brief.
1
The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.
First, counsel’s argument that the district court erred in not applying the safety-
valve reduction fails, because Cortez had more than 1 criminal history point and did
not cooperate with the government. See U.S.S.G. § 5C1.2(a)(1), (a)(5). The
jurisdictional argument raised by both counsel and Cortez--that the offense did not
involve interstate commerce--has previously been rejected by this court. See United
States v. Davis,
    288 F.3d 359
    , 362 (8th Cir. 2002), petition for cert. filed,
    70 U.S.L.W. 3790 
    (U.S. June 7, 2002) (No. 01-1804). The argument that the indictment
was insufficient also fails, as any nonjurisdictional defects were waived by Cortez’s
guilty plea, see United States v. Fitzhugh,
    78 F.3d 1326
    , 1330 (8th Cir.), cert. denied,
    519 U.S. 902 
    (1996), and the indictment on its face stated an offense, see United
States v. Hester,
    140 F.3d 753
    , 760 (8th Cir. 1998). While Cortez complains that no
coconspirators were identified, he admitted in his guilty-plea petition that he agreed
with others to possess and distribute methamphetamine.
Contrary to counsel’s final argument, Cortez’s sentence did not violate
Apprendi v. New Jersey,
    530 U.S. 466 
    (2000), as his sentence did not exceed the
applicable statutory maximum. See United States v. Aguayo-Delgado,
    220 F.3d 926
    ,
932 (8th Cir.), cert. denied,
    531 U.S. 1026 
    (2000). Cortez’s ineffective-assistance
claims are not properly raised on direct appeal. See United States v. Cain,
    134 F.3d 1345
    , 1352 (8th Cir. 1998).
Following our independent review, see Penson v. Ohio,
    488 U.S. 75 
    (1988), we
find no nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw,
and we affirm.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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