United States v. Martinez-Salinas , 110 F. App'x 733 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-4070
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Ricardo Martinez-Salinas, * Northern District of Iowa
*
Appellant. * [Unpublished]
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Submitted: October 5, 2004
Filed: October 12, 2004
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Before WOLLMAN, McMILLIAN, and RILEY, Circuit Judges.
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PER CURIAM.
Ricardo Martinez-Salinas (Martinez) appeals from the final judgment entered
in the District Court1 for the Northern District of Iowa after he pleaded guilty to two
counts of distributing drugs within 1,000 feet of a protected location, in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860(a). The district court sentenced
appellant to concurrent terms of 78 months imprisonment. Counsel has moved to
withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing
the district court plainly erred in assessing a firearm enhancement. In his pro se brief,
1
The Honorable Donald E. O’Brien, United States District Judge for the
Northern District of Iowa.
Martinez adopts the Anders argument, and adds that he received ineffective assistance
during the plea negotiations and hearing. Martinez has also filed a Fed. R. App. P.
28(j) letter, arguing his sentence violates Blakely v. Washington, 124 S. Ct. 2531(2004), because it was enhanced based on factual findings not made by a jury. For
the reasons discussed below, we affirm the judgment of the district court.
The Anders argument is without merit. Martinez abandoned the issue when,
at sentencing, he and his counsel withdrew his objection to the presentence report’s
(PSR’s) recommendation for a firearm enhancement. See United States v. Olano, 507
U.S. 725, 732-34 (1993) (claim relinquished below need not be addressed on appeal);
United States v. Tulk, 171 F.3d 596, 600 (8th Cir. 1999) (issue deliberately waived
below is not reviewed, even for plain error). Further, Martinez’s ineffective-
assistance claim should be raised--if at all--in collateral proceedings, not on direct
appeal. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003).
Martinez’s Rule 28(j) Blakely argument also fails. His plea agreement
included stipulations as to drug quantity, protected location, and firearm possession.
See Blakely, 124 S. Ct. at 2541 (nothing prevents defendant from waiving his rights
under Apprendi v. New Jersey, 530 U.S. 466 (2000); when defendant pleads guilty,
government is free to seek judicial sentence enhancements so long as defendant either
stipulates to relevant facts or consents to judicial factfinding); United States v. Lucca,
377 F.3d 927, 934 (8th Cir. 2004) (holding that Blakely was not implicated where
defendant was sentenced based solely upon facts admitted as part of his guilty plea).
We have also carefully reviewed the record in accordance with Penson v. Ohio, 488
U.S. 75 (1988), and have found no nonfrivolous issues.
Thus, we grant counsel’s motion to withdraw, and we affirm.
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