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 2006-03

United States v. Mendoza-Mendoza , 172 F. App'x 130 ( 2006 )


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  •                      United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-4175
___________
United States of America,           *
*
Appellee,                *
*
v.                            * Appeal from the United States
* District Court for the
Arturo Mendoza-Mendoza, true name * District of Nebraska.
Sergio Mendoza-Chavez,              *
*      [UNPUBLISHED]
Appellant.               *
___________
Submitted: March 20, 2006
Filed: March 23, 2006
___________
Before RILEY, MAGILL, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Arturo Mendoza-Mendoza, true name Sergio Mendoza-Chavez (Mendoza-
Chavez), pled guilty to conspiring to distribute and possess with intent to distribute
500 grams or more of methamphetamine mixture in Nebraska between January 1,
1997, and November 17, 2003, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§
841(a)(1), (b)(1), and 846. Over Mendoza-Chavez’s objection and in reliance on the
government’s evidence at sentencing, the district court1 calculated a Category II
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
criminal history based on three points: one point for a disturbing-the-peace offense in
California, for which Mendoza-Chavez received a sentence of 54 days in jail and 12
months probation in January 2003; and two points for committing the instant offense
while on probation. The district court sentenced Mendoza-Chavez to 121 months’
imprisonment and 5 years’ supervised release. On appeal, Mendoza-Chavez’s counsel
moved to withdraw and filed a brief under Anders v. California,
    386 U.S. 738 
    (1967),
noting the district court’s ruling on the criminal history objection.
We hold that the district court correctly determined Mendoza-Chavez
committed the conspiracy offense while he was under a criminal justice sentence. See
U.S.S.G. § 4A1.1(d); United States v. Tolson,
    988 F.2d 1494
    , 1499-1501 (7th Cir.
1993) (finding defendant, who pled guilty to a conspiracy spanning specific dates,
properly received criminal history points under § 4A1.1(d) for committing conspiracy
while on probation); cf. United States v. White,
    408 F.3d 399
    , 404 (8th Cir.) (ruling
defendant admitted the dates alleged in the indictment when he pled guilty to the
indictment without reserving the right to challenge the dates at sentencing), cert
denied,
    126 S. Ct. 674 
    (2005).
Having reviewed the record independently pursuant to Penson v. Ohio,
    488 U.S. 75
    , 80 (1988), we conclude Mendoza-Chavez–who was, without objection,
erroneously sentenced under a mandatory Guidelines scheme–cannot demonstrate
plain error because the record does not establish the district court would have imposed
a more favorable sentence under advisory Guidelines. See United States v. Booker,
    543 U.S. 220
    , 233-37, 245, 258-59 (2005); United States v. Pirani,
    406 F.3d 543
    , 550-
53 (8th Cir.) (en banc), cert. denied,
    126 S. Ct. 266 
    (2005). We further conclude,
particularly in light of the quantity of methamphetamine involved, that Mendoza-
Chavez’s sentence at the bottom of the Guidelines range was not unreasonable. See
    Booker, 543 U.S. at 261-62
    ; United States v. Lincoln,
    413 F.3d 716
    , 717-18 (8th Cir.),
cert. denied,
    126 S. Ct. 840 
    (2005).
-2-
Accordingly, we affirm the judgment of the district court, and we grant
counsel’s motion to withdraw.
_____________________________
-3-