United States v. Eric Rosario ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2954
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Eric Rosario, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 21, 2009
Filed: January 28, 2009
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Before RILEY, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.
Eric Rosario pleaded guilty to possessing with intent to distribute more than 50
grams of actual methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(viii). The district court1 calculated an advisory Guidelines range of 108-135
months; granted the government’s motion under U.S.S.G. § 5K1.1 and 18 U.S.C.
§ 3553(e) and reduced Rosario’s total offense level by 2, making his Guidelines range
87-108 months; and sentenced Rosario to 96 months in prison and 5 years of
supervised release. On appeal, Rosario’s counsel has filed a brief under Anders v.
1
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
California, 386 U.S. 738 (1967), seeking to withdraw and arguing that Rosario should
not have been assessed a sentencing enhancement for reckless conduct in the course
of fleeing, and that Rosario’s sentence is unreasonable.
We conclude that Rosario waived any challenge to the Guidelines calculations
when he withdrew his objections to the presentence report at the sentencing hearing.
See United States v. Thompson, 289 F.3d 524, 526-27 (8th Cir. 2002) (declining to
review findings related to sentencing enhancement, even for plain error, where
defendant’s counsel withdrew objections at sentencing). We also conclude that
Rosario’s sentence is not unreasonable. See Gall v. United States, 128 S. Ct. 586, 597
(2007) (appellate court must review sentence under abuse-of-discretion standard
whether sentence imposed is inside or outside Guidelines range); United States v.
Watson, 480 F.3d 1175, 1177 (8th Cir.) (listing circumstances where sentencing court
abuses its discretion, resulting in unreasonable sentence), cert. denied, 128 S. Ct. 305(2007); see also United States v. Berni, 439 F.3d 990, 992-93 (8th Cir. 2006) (per
curiam) (concluding that U.S.S.G. § 5K1.1 departure does not shield overall sentence
from reasonableness review under advisory Guidelines).
Finally, after reviewing the record independently under Penson v. Ohio, 488
U.S. 75, 80 (1988), we have found no nonfrivolous issues. Accordingly, we grant
counsel leave to withdraw, and we affirm.
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