United States v. Angel Perez-Abarca ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2655
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Angel Perez-Abarca, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 14, 2009
Filed: November 5, 2009
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Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Angel Perez-Abarca appeals from the 120-month prison sentence the district
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court imposed after he pleaded guilty to conspiring to distribute 500 grams or more
of a substance containing methamphetamine, and 50 grams or more of actual
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.
Counsel has moved to withdraw, and has filed a brief under Anders v. California, 386
U.S. 738 (1967), raising as a potential issue that the sentence was unduly harsh.
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The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
Abarca has filed a pro se supplemental brief suggesting that his counsel was
ineffective.
Reviewing the sentence for abuse of discretion, we must first ensure that there
were no significant procedural errors, and then consider the substantive
reasonableness of the sentence. See United States v. Feemster, 572 F.3d 455, 461 (8th
Cir. 2009) (en banc). We conclude that the district court committed no procedural
error. We further conclude that the sentence is not unreasonable, because 120 months
was the statutory minimum and Abarca did not demonstrate that he was eligible for
safety-valve relief. See United States v. Gregg, 451 F.3d 930, 937 (8th Cir. 2006)
(district court’s lack of discretion to impose non-Guidelines sentence below statutory
minimum); United States v. Warford, 439 F.3d 836, 844 (8th Cir. 2006) (defendant’s
burden of showing eligibility for safety-valve relief). Further, Abarca must pursue his
ineffective-assistance claims in a proceeding under 28 U.S.C. § 2255. See United
States v. Lewis, 483 F.3d 871, 873 n.2 (8th Cir. 2007).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we have found no non-frivolous issue for appeal. Accordingly, we affirm
the district court’s judgment, and we grant counsel’s motion to withdraw, subject to
counsel informing appellant about procedures for seeking rehearing and filing a
petition for certiorari.
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