United States v. Jerry Angelle, Jr. , 352 F. App'x 118 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2127
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Jerry Angelle, Jr., *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 22, 2009
Filed: November 5, 2009
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Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
A jury convicted Jerry Angelle, Jr., of conspiring to distribute 5 grams or more
of cocaine base after having been convicted of a felony drug offense, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846, and 851; and distributing 5-50 grams of
cocaine base after having been convicted of a felony drug offense, in violation of
sections 841(a)(1), (b)(1)(B), and 851. The district court1 imposed two concurrent
120-month prison sentences, the mandatory minimum, and Angelle appeals. His
counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S.
1The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
738 (1967), arguing that the district court erred in allowing evidence of Angelle’s
prior drug conviction, and that there was insufficient evidence to support the
convictions. In a pro se supplemental brief, Angelle argues that the district court
should have instructed the jury that he could not conspire with a government
informant; that the mandatory minimum sentence violates due process; and that trial
counsel was ineffective. For the following reasons, we affirm.
Angelle waived his argument that his prior conviction should not have been
admitted because he stipulated below that he had sustained the conviction, see United
States v. Hawkins, 215 F.3d 858, 860 (8th Cir. 2000); and we find the evidence was
sufficient to sustain both convictions based, among other things, on witness testimony
about Angelle’s drug dealings with multiple persons, some of whom resold the drugs,
and items found in Angelle’s residence, see United States v. Jones, 559 F.3d 831, 835
(8th Cir. 2009) (standard of review). As to counsel’s contention that the witnesses
were not credible, this was a matter for the jury. See id. at 835-36 (appellate court
does not review witness-credibility issues).
Turning to the pro se arguments, we conclude that the district court did not
plainly err in failing to give the jury instruction at issue because the evidence did not
support it, see United States v. Refert, 519 F.3d 752, 756 (8th Cir. 2008) (standard of
review), United States v. Nelson, 165 F.3d 1180, 1184-85 (8th Cir. 1999) (indictable
conspiracy existed where individual that had acted as government informant was not
so acting when engaging in drug transactions underlying charged conspiracy); the
district court did not plainly err in imposing the mandatory minimum, see United
States v. Olano, 507 U.S. 725, 731-36 (1993) (forfeited error is subject to plain error
review), United States v. Mendoza, 876 F.2d 639, 641 (8th Cir. 1989) (mandatory
minimum does not violate due process); and the ineffective-assistance claim is not
properly raised in this direct criminal appeal, see United States v. Ramirez-Hernandez,
449 F.3d 824, 826-27 (8th Cir. 2006).
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Finally, having reviewed the record independently under Penson v. Ohio, 488
U.S. 75 (1988), we have found no nonfrivolous issues. Accordingly, we affirm the
district court’s judgment, and we grant counsel’s motion to withdraw, subject to
counsel informing Angelle about procedures for seeking rehearing or filing a petition
for certiorari.
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