United States v. E. Arteaga-Montoya , 177 F. App'x 505 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1902
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United States of America, *
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Appellee, *
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v. *
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Edgar Arteaga-Montoya, *
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Appellant. *
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Appeals from the United States
No. 05-2204 District Court for the
___________ Eastern District of Arkansas.
United States of America, *
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Appellee, *
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v. * [UNPUBLISHED]
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Aldo Noel Acosta-Isiorda, *
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Appellant. *
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Submitted: April 5, 2006
Filed: April 13, 2006
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Before RILEY, MAGILL, and GRUENDER, Circuit Judges.
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PER CURIAM.
In this consolidated direct criminal appeal, Edgar Arteaga-Montoya and
codefendant Aldo Acosta-Isiordia1 challenge the sentences imposed by the district
court2 after they pleaded guilty to use of a communications facility to facilitate drug
trafficking, in violation of 21 U.S.C. § 843(b). Both appellants were subject to a
maximum sentence of 48 months imprisonment based upon their pleas. The district
court sentenced Arteaga-Montoya to 48 months imprisonment and one year of
supervised release, and sentenced Acosta-Isiordia to 42 months imprisonment and one
year of supervised release. But for the 48-month statutory maximum triggered by
their pleas, both appellants would have faced a Guidelines imprisonment range of 121-
151 months. On appeal, counsel for both appellants have moved to withdraw and
have filed briefs under Anders v. California, 386 U.S. 738 (1967).
As for Arteaga-Montoya, our careful review of the record reveals that there are
no nonfrivolous issues for appeal, see Penson v. Ohio, 488 U.S. 75, 80 (1988),
because, among other reasons, we see nothing in the record to rebut the presumption
that Arteaga-Montoya’s sentence is reasonable. See United States v. Booker, 543 U.S.
220, 261 (2005) (appellate courts review sentences for unreasonableness); United
States v. Lincoln, 413 F.3d 716, 717-18 (8th Cir.) (sentence within Guidelines range
is presumptively reasonable, and defendant must rebut presumption of
reasonableness), cert. denied, 126 S. Ct. 840 (2005); U.S.S.G. § 5G1.1(a) (where
1
The record indicates that the correct name is Isiordia rather than Isiorda. (Plea
Tr. at 2.)
2
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
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statutorily authorized maximum sentence is less than minimum of applicable
Guidelines range, statutory maximum shall be Guidelines sentence).
As for Acosta-Isiordia, we reject the Anders brief argument that the district
court erred in refusing to grant this appellant a three- rather than two-level reduction
for acceptance of responsibility. Not only would the additional level reduction not
have affected his Guidelines sentence, which was drastically reduced because of the
statutory maximum, but Acosta-Isiordia specifically stipulated in his plea agreement
that he would not receive a third level. See United States v. Early, 77 F.3d 242, 244
(8th Cir. 1996) (per curiam) (defendant who did not challenge plea agreement or seek
to withdraw from it was bound by its stipulations). And as in Arteaga-Montoya’s
case, our review of the record under Penson persuades us that there are no other
nonfrivolous issues. In particular, we note that the sentence imposed is not
unreasonable, because the district court appropriately considered factors such as
Acosta-Isiordia’s peripheral role in the conspiracy, his youth, the court’s wish to avoid
disparate sentences, and Acosta-Isiordia’s lack of criminal history. See 18 U.S.C.
§ 3553(a)(1) (court shall consider nature and circumstances of offense and history and
characteristics of defendant); Booker, 543 U.S. at 261.
Having found no nonfrivolous issues in either case, we affirm both sentences
and convictions, and we grant both counsel leave to withdraw.
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