United States v. Zetino-Rivera , 267 F. App'x 238 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4819
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEREMIAS NATHAN ZETINO-RIVERA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:05-cr-00030-RLV)
Submitted: February 21, 2008 Decided: February 25, 2008
Before MOTZ and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Robert H. Hale, Jr., Raleigh, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeremias Nathan Zetino-Rivera pleaded guilty, pursuant to
a plea agreement, to one count of using and carrying a firearm
during and in relation to, and possessing a firearm in furtherance
of, a drug trafficking crime, in violation of 18 U.S.C. § 924(c)
(2000). The district court sentenced Zetino-Rivera to the
statutory minimum of sixty months of imprisonment. Zetino-Rivera
timely appealed.
On appeal, counsel has filed an Anders* brief, in which
he states there are no meritorious issues for appeal, but questions
whether the district court acted unreasonably when it failed to
consider the evidence offered by Zetino-Rivera in support of his
motion for a variance below the statutory minimum sentence.
Zetino-Rivera was advised of his right to file a pro se
supplemental brief, but has not filed a brief. The Government
declined to file a brief. We affirm.
Zetino-Rivera’s sentence was the mandatory minimum
sentence. The district court properly recognized that, absent a
substantial assistance motion filed by the government pursuant to
18 U.S.C.A. § 3553(e) (West 2000 & Supp. 2007), it lacked authority
to sentence Zetino-Rivera below the statutory mandatory minimum
sentence. See United States v. Allen, 450 F.3d 565, 568-69 (4th
Cir. 2006).
*
Anders v. California, 386 U.S. 738 (1967).
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In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Zetino-Rivera’s conviction and sentence. This
court requires that counsel inform Zetino-Rivera, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Zetino-Rivera requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on Zetino-Rivera.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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