United States v. Jose Rojas-Garcia ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2396
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Southern District of Iowa.
*
Jose Rojas-Garcia, also known as Alex, * [UNPUBLISHED]
*
Appellant. *
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Submitted: March 12, 2009
Filed: March 17, 2009
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Before RILEY, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.
Jose Rojas-Garcia challenges the sentence the district court1 imposed after he
pled guilty to conspiring to distribute methamphetamine, in violation of 21 U.S.C.
§§ 841(b)(1)(A) and 846. In a brief filed under Anders v. California, 386 U.S. 738
(1967), counsel argues that (1) the district court clearly erred in holding Rojas-Garcia
responsible for two prior drug convictions based on the government’s sentencing
evidence, (2) the government violated Rojas-Garcia’s rights by refusing to file a
1
The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
substantial-assistance motion despite his cooperation, and (3) Rojas-Garcia received
ineffective assistance of counsel at sentencing. We affirm.
We conclude that the district court did not clearly err in holding Rojas-Garcia
responsible for the challenged drug offenses based on the evidence presented at
sentencing: a fingerprint comparison report, a prior presentence report, and witness
testimony. See United States v. Urbina-Mejia, 450 F.3d 838, 839-40 (8th Cir. 2006)
(district court did not clearly err in finding that defendant had prior conviction based
on National Crime Information Center data and witness testimony where defendant
provided no evidence that crime-information report was unreliable). Counsel’s
argument regarding the government’s failure to file a substantial-assistance motion is
without merit, see United States v. Godinez, 474 F.3d 1039, 1043-44 (8th Cir. 2007)
(government does not have duty to move for substantial-assistance departure unless
plea agreement created duty); United States v. Oransky, 908 F.2d 307, 309 (8th Cir.
1990) (declining to consider government’s refusal to file departure motion because
issue was not presented to district court), and the ineffective-assistance claim is not
properly raised in this direct appeal, see United States v. Ramirez-Hernandez, 449
F.3d 824, 827 (8th Cir. 2006).
Having reviewed the record in accordance with Penson v. Ohio, 488 U.S. 75
(1988), we find no non-frivolous issues. Accordingly, we deny Rojas-Garcia’s
motions for appointment of new counsel, and we affirm.
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