United States v. Gregory Esquivel , 355 F. App'x 971 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2572
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Gregory A. Esquivel, * [UNPUBLISHED]
*
Appellant. *
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Submitted: October 26, 2009
Filed: December 11, 2009
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Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal, Gregory Esquivel challenges the sentence the
district court1 imposed after he pleaded guilty to conspiring to distribute cocaine,
methamphetamine, and marijuana, in violation of 21 U.S.C. § 846 (Count 1); and
possessing a firearm during and in relation to a drug trafficking crime, in violation of
18 U.S.C. §§ 2 and 924(c)(1)(A) (Count 26). The district court sentenced Esquivel
to a below-Guidelines-range prison term of 120 months on Count 1 and a consecutive
prison term of 60 months on Count 26. On appeal, his counsel has moved to withdraw
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
and has filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the
district court erred in sentencing Esquivel. Esquivel has filed a pro se supplemental
brief challenging the district court’s denial of his motion to suppress.
We reject these challenges. By pleading guilty unconditionally, Esquivel
waived his right to appeal the denial of his motion to suppress. See United States v.
Smith, 422 F.3d 715, 724 (8th Cir. 2005) (by pleading guilty, defendant waived all
nonjurisdictional defenses and effectively waived right to appeal denial of suppression
motion). We also conclude that the district court did not err in sentencing Esquivel,
because he was sentenced on the drug conspiracy offense to the statutory minimum,
see 21 U.S.C. § 841(a); United States v. Chacon, 330 F.3d 1065, 1066 (8th Cir. 2003)
(only authority for district court to depart below statutory minimum sentence is in 18
U.S.C. § 3553(e) and (f), which apply only when government makes motion for
substantial assistance or when defendant qualifies under safety-valve provision), and
because his firearm offense carried a mandatory consecutive 60-month prison term,
see 18 U.S.C. § 924(c)(1)(A).
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we have found no nonfrivolous issues for appeal. Accordingly, we affirm the
judgment of the district court, and we grant counsel’s motion to withdraw, subject to
counsel informing Esquivel about procedures for seeking rehearing or filing a petition
for certiorari.
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