United States v. Celio Guizar , 405 F. App'x 98 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2336
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Southern District of Iowa.
*
Celio Ramos Guizar, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 21, 2010
Filed: December 28, 2010
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Before LOKEN, MURPHY, and BENTON, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal, Celio Guizar challenges the 120-month statutory
minimum prison term that the district court1 imposed following his guilty plea to
possessing with intent to distribute at least 500 grams of cocaine in violation of 21
U.S.C. § 841(a)(1), (b)(1)(B); and unlawful entry after deportation in violation of 8
U.S.C. § 1326(a). Counsel has filed a brief under Anders v. California, 386 U.S. 738(1967), in which he argues that the sentence was unreasonable because it was greater
than necessary to promote the goals of 18 U.S.C. § 3553(a).
1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
We reject counsel’s argument, because the district court did not have discretion
to sentence Guizar below the statutory minimum of 120 months in prison, see 21
U.S.C. § 841(b)(1)(B); United States v. Chacon, 330 F.3d 1065, 1066 (8th Cir. 2003);
see also United States v. Gregg, 451 F.3d 930, 937 (8th Cir. 2006). It appears from
a pro se filing by Guizar that he wishes to raise a claim of ineffective assistance of
counsel, but the proper vehicle for such claims is in a proceeding under 28 U.S.C.
§ 2255. See United States v. Cain, 134 F.3d 1345, 1352 (8th Cir. 1998). He also
appears to complain that he did not have an opportunity to review the presentence
report with counsel prior to sentencing, but he did not seek more time to do so at the
sentencing hearing, and he has not described how he suffered resulting prejudice. See
Fed. R. Crim. P. 52(a) (error that does not affect substantial rights must be
disregarded); United States v. Prado, 204 F.3d 843, 845 (8th Cir. 2000).
Finally, having reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988),
we find no nonfrivolous issues, and we therefore allow counsel to withdraw subject
to counsel informing Guizar about procedures for seeking rehearing or filing a petition
for certiorari. Accordingly, we affirm the judgment of the district court.
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