United States v. Jose Valdivia , 334 F. App'x 43 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1421
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Jose G. Valdivia, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: October 6, 2009
Filed: October 13, 2009
___________
Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
Jose G. Valdivia pleaded guilty to possessing with intent to deliver more than
5 grams of actual methamphetamine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B)(viii); to possessing a firearm in furtherance of a drug-trafficking crime, in
violation of 18 U.S.C. § 924(c); and to three forfeiture counts. The district court1
imposed consecutive prison sentences of 78 months on the drug count and 60 months
on the gun count, to be followed by concurrent 5-year terms of supervised release. On
appeal, counsel has moved to withdraw, and in a brief filed under Anders v.
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
California, 386 U.S. 738 (1967), he argues that the district court’s sentence is
excessive and unreasonable. In a pro se motion, Valdivia seeks to compel his counsel
to argue that the district court erred in finding a sufficient factual basis for his guilty
plea to the gun conviction. For the reasons discussed below, we affirm.
Valdivia pleaded guilty pursuant to a written plea agreement that stipulated to
the total offense level for the drug offense and to a 5-year consecutive sentence for the
gun offense. The district court followed those stipulations, and after granting
Valdivia’s motion to depart to a lower criminal history, sentenced him to the low end
of the recommended Guidelines range of imprisonment on the drug charge and the
statutory 5-year consecutive sentence on the gun charge. In these circumstances,
Valdivia has not rebutted the presumption that his sentence is reasonable. See United
States v. Dembry, 535 F.3d 798, 801 (8th Cir. 2008) (appellate court presumes prison
sentence within advisory Guidelines range is reasonable), cert. denied, 129 S. Ct. 958(2009); United States v. Mickelson, 433 F.3d 1050, 1051, 1055-56 (8th Cir. 2006)
(defendant who explicitly and voluntarily exposes himself to specific sentence may
not challenge that punishment on appeal; defendant’s stipulation to applicable
Guidelines range and counsel’s request for sentence within that range may be
interpreted as acknowledgment that any sentence within that range would have been
reasonable). As to Valdivia’s motion to compel counsel to challenge the factual basis
for his plea to the gun charge, we conclude that any such argument by counsel would
fail. See United States v. Williams, 512 F.3d 1040, 1044 (8th Cir.), cert. denied, 128
S. Ct. 2918 (2008).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we have found no nonfrivolous issues. Accordingly, we affirm. We deny
Valdivia’s appellate motion, and we grant counsel’s motion to withdraw, subject to
counsel advising Valdivia about procedures for seeking rehearing and filing a petition
for writ of certiorari.
______________________________
-2-