United States v. Antonio Zamarripa ( 1997 )


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  •                           United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 96-1296
    ___________
    United States of America,                *
    *
    Appellee,                   *
    * Appeal from the United States
    v.                                 * District Court for the
    * Eastern District of Missouri.
    Antonio Zamarripa,                       *
    *      [UNPUBLISHED]
    Appellant.                  *
    ___________
    Submitted: August 19, 1997
    Filed: November 17, 1997
    ___________
    Before McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
    ___________
    PER CURIAM.
    Anthony Zamarripa and nine others were indicted for conspiracy to distribute,
    and to possess with intent to distribute, more than one kilogram each of heroin and
    methamphetamine. See 21 U.S.C. §§ 841(a)(1) and 846. After Zamarripa pleaded
    guilty, the district court sentenced him to 180 months in prison and five years
    supervised release. Zamarripa appeals both his conviction and his sentence. His
    counsel has tendered a brief pursuant to Anders v. California, 
    386 U.S. 738
    (1967), and
    Zamarripa has filed two supplemental briefs. We affirm Zamarripa&s conviction but
    remand his case for resentencing.
    We first address the issue raised in the Anders brief: whether the district court
    abused its discretion in denying Zamarripa&s motion to withdraw his guilty plea. At the
    change-of-plea hearing, Zamarripa indicated he was pleading guilty of his own free
    will. He also stipulated that he had entered into a conspiracy to distribute
    methamphetamine which had been in operation between December 1992 and June
    1995, and that on three occasions in February 1994, he had distributed
    methamphetamine to a confidential informant. In support of his subsequent motion to
    withdraw his plea, Zamarripa professed his innocence of some of the conduct described
    in the presentence report (PSR), referred to certain sections of the Constitution, and
    discussed “prejudice” he had suffered in prior encounters with other courts. We
    conclude that the district court did not abuse its discretion in determining Zamarripa
    failed to demonstrate a fair and just reason for withdrawing his plea. See Fed. R. Crim.
    P. 32(e); United States v. Wicker, 
    80 F.3d 263
    , 266 (8th Cir. 1996) (defendant bears
    burden of showing “fair and just reason” to withdraw his guilty plea); United States v.
    Nichols, 
    986 F.2d 1199
    , 1201 (8th Cir. 1993) (standard of review).
    To the extent Zamarripa was counseled,1 the ineffective-assistance arguments he
    raises in his pro se brief should be brought in a 28 U.S.C. § 2255 proceeding where the
    record can be appropriately developed. See United States v. Sanchez, 
    927 F.2d 376
    ,
    378 (8th Cir. 1991) (per curiam).
    Turning to Zamarripa&s sentence, we first note the PSR recounted that the
    amount of methamphetamine Zamarripa sold to the confidential informant was 11.5
    grams. The PSR nonetheless recommended holding Zamarripa accountable for the
    distribution of at least three to ten kilograms, which triggered a base offense level of
    34 under the Sentencing Guidelines. See U.S. Sentencing Guidelines Manual
    1
    At Zamarripa&s insistence, he represented himself throughout the plea and
    sentencing proceedings, and the district court appointed attorney John Garvey to act
    as advisory counsel.
    -2-
    §§ 2D1.1(a)(3), (c)(3) (1995). The PSR further indicated that Zamarripa was less
    culpable than most of his co-defendants, describing his role as that of an individual
    distributor. In calculating his total offense level, however, the PSR added three levels
    pursuant to U. S. Sentencing Guidelines Manual § 3B1.1(b) (1995) for Zamarripa&s role
    as a manager or supervisor. The PSR also subtracted three levels for Zamarripa’s
    acceptance of responsibility; calculated 18 criminal history points, resulting in a
    criminal history category of VI; and recommended a Guidelines sentencing range of
    262-327 months.
    Zamarripa filed written objections to the PSR and argued at the sentencing
    hearing that the quantity of drugs attributed to him was incorrect, and that he did not
    act as a manager or supervisor in the offense. The district court overruled these PSR
    objections without specifically addressing them, indicating it was granting the
    government’s U.S. Sentencing Guidelines Manual § 5K1.1(1995) motion and departing
    downward from the Guidelines range.
    We conclude the district court&s failure to address specifically Zamarripa&s
    objection to the quantity of drugs attributed to him and how it arrived at the three-to-ten
    kilogram figure requires remand. See Fed. R. Crim. P. 32(c)(1) (if defendant objects
    to matters contained in PSR, sentencing court is required to “make either a finding on
    the allegation or a determination that no finding is necessary because the controverted
    matter will not be taken into account in, or will not affect, sentencing”); United States
    v. Rodriguez, 
    112 F.3d 374
    , 376-77, 379 (8th Cir. 1997) (remanding for resentencing
    of Zamarripa&s co-defendants; finding evidence of 3-10 kilogram drug quantity too
    uncertain to sustain base offense level of 34); United States v. Logan, 
    121 F.3d 1172
    ,
    1178-79 (8th Cir. 1997) (same); United States v. Greene, 
    41 F.3d 383
    , 386 (8th Cir.
    1994) (per curiam) (if defendant objects to PSR, sentencing court must make specific
    finding “on the basis of evidence, and not the presentence report”). We conclude
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    remand is also warranted because Zamarripa&s status as a distributor, by itself, did not
    warrant a three-level aggravating role enhancement under section 3B1.1. See United
    States v. Bryson, 
    110 F.3d 575
    , 584 (8th Cir. 1997).
    Accordingly, we remand this matter to the district court for proceedings
    consistent with this opinion. Finally, we deny counsel&s motion to withdraw and the
    numerous pro se motions Zamarripa has filed on appeal.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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