United States v. Marvin Solis , 470 F. App'x 535 ( 2012 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2849
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Marvin Ricardo Solis, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 23, 2012
Filed: May 29, 2012
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Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
After Marvin Solis pleaded guilty to conspiring to distribute 50 grams or more
of a methamphetamine mixture and a detectable amount of cocaine, the district court1
sentenced him to 121 months in prison and five years of supervised release. On
appeal, his counsel has moved to withdraw, and has filed a brief under Anders v.
California, 386 U.S. 738 (1967), and Solis has filed pro se submissions. We affirm.
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
In the Anders brief, counsel argues that the district court erred at sentencing by
enhancing Solis’s Guidelines range for playing an aggravating role in the offense.
In his pro se submissions, Solis asserts that the enhancement was based on uncharged
conduct, in violation of his constitutional rights. Solis is precluded from challenging
the enhancement on appeal, however, because he withdrew his objection prior to
sentencing. See United States v. Thompson, 289 F.3d 524, 526-27 (8th Cir. 2002).
Even if his constitutional argument survives the withdrawal of his objection, the
argument fails. See United States v. Okai, 454 F.3d 848, 851 (8th Cir. 2006).
Solis also asks that his case be remanded for consideration of his eligibility for
a fast-track program. But he did not raise any issue at sentencing about a fast-track
program, and if he is raising the district court’s failure to consider the matter sua
sponte at sentencing as a mitigating sentencing factor or otherwise, the court did not
plainly err. Cf. United States v. Elodio-Benitez, 672 F.3d 584, 586 (8th Cir. 2012).
Finally, having reviewed the record independently under Penson v. Ohio, 488
U.S. 75 (1988), including the reasonableness of the sentence imposed, see United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc), we find no
nonfrivolous issue. Accordingly, we grant counsel’s motion to withdraw, and we
affirm the judgment.
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