United States v. Jose De Avila-Muro , 118 F. App'x 100 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3871
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Jose Ventura De Avila-Muro, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 26, 2004
Filed: November 8, 2004
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Before MURPHY, FAGG, and SMITH, Circuit Judges.
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PER CURIAM.
Jose Ventura De Avila-Muro (Muro) pleaded guilty to possessing with intent
to distribute 50 grams or more of methamphetamine and 500 grams or more of a
mixture containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(viii). Muro testified at his plea hearing that on April 14, 2003, he had
possessed about 10 pounds of a mixture he knew contained methamphetamine and
that he had intended to deliver it to an individual who, unbeknownst to Muro, was
working as a confidential informant (CI) for law enforcement authorities. Muro
further testified that he had been tricked because the CI had not revealed that he was
an informant and had insisted for about a year that Muro sell him drugs. Muro’s
counsel assured the court that he had considered and rejected an entrapment defense;
and Muro indicated that he was pleading guilty voluntarily, and not because of any
threats or promises. The district court1 later sentenced Muro to 135 months
imprisonment and 5 years supervised release.
On appeal, Muro’s counsel has moved to withdraw and filed a brief under
Anders v. California, 386 U.S. 738 (1967), arguing that Muro asserted an entrapment
defense at his plea hearing and thus his guilty plea was not voluntary and lacked a
factual basis. In his pro se supplemental brief, Muro echoes counsel’s arguments and
asserts that he was entitled to safety-valve relief and a minor-role reduction.
We review the district court’s findings of fact for clear error and its conclusions
of law de novo. See United States v. Kanatzar, 370 F.3d 810, 814 (8th Cir. 2004).
The plea hearing transcript, which reveals the court’s careful and lengthy questioning
of Muro, supports that Muro’s guilty plea was knowing and voluntary. See United
States v. Brown, 715 F.2d 387, 388 (8th Cir. 1983) (finding guilty plea was voluntary
where defendant’s responses to district court’s questions indicated he was pleading
guilty voluntarily). We also note that Muro did not move to withdraw his guilty plea
in the district court. See United States v. Murphy, 899 F.2d 714, 716 (8th Cir. 1990).
We hold that Muro’s plea-hearing admissions amply established a factual basis for
the offense, see United States v. Tomberlin, 130 F.3d 1318, 1319 (8th Cir. 1997)
(elements of possession with intent to distribute); that, by his guilty plea, Muro
waived the right to raise entrapment as a defense, see United States v. Beck, 250 F.3d
1163, 1166 (8th Cir. 2001) (valid guilty plea waives all non-jurisdictional defects);
and that he was not entitled to safety-valve relief, see U.S.S.G. § 5C1.2(a)
(requirements for relief), or a mitigating-role reduction, see U.S.S.G. § 3B1.2,
comment. (n.2).
1
The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
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Having found no nonfrivolous issues after reviewing the record independently
under Penson v. Ohio, 488 U.S. 75 (1988), we affirm. Counsel’s motion to withdraw
will be considered upon certification that he has advised the appellant of the
procedures for filing a petition for writ of certiorari in compliance with Part V of our
court’s plan to implement the Criminal Justice Act.
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