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 2001-11

United States v. Julio Oviedo , 27 F. App'x 708 ( 2001 )


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  •                      United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-2130
___________
United States of America,               *
*
Appellee,                  *
* Appeal from the United States
v.                                * District Court for the
* Northern District of Iowa.
Julio Oviedo,                           *
*     [UNPUBLISHED]
Appellant.                 *
___________
Submitted: October 31, 2001
Filed: November 6, 2001
___________
Before LOKEN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________
PER CURIAM.
Julio Oviedo pleaded guilty to conspiring to distribute and possess with intent
to distribute 500 grams or more of methamphetamine in violation of
    21 U.S.C. § 846
    .
The district court1 sentenced him to 292 months imprisonment and five years
supervised release. On appeal, Oviedo’s attorney has filed a brief and moved to
withdraw under Anders v. California,
    386 U.S. 738
     (1967). Oviedo has filed a pro
se supplemental brief. We affirm Oviedo’s conviction and sentence.
1
The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
Counsel argues that Oviedo did not admit to each element of a conspiracy, but
the plea transcript amply supports a factual basis for the plea. See United States v.
Rodgers,
    18 F.3d 1425
    , 1428-29 (8th Cir. 1994). In his pro se submission, Oviedo
argues that the district court improperly awarded him criminal history points for being
on probation when he committed the instant offense, imposing a two-level
enhancement for possessing a gun, and holding him responsible for fifteen or more
kilograms of methamphetamine.
We reject these arguments: (1) because Oviedo’s criminal history category
would be the same without the two challenged criminal history points, any error
would be harmless, see United States v. Tiger,
    223 F.3d 811
    , 812-13 (8th Cir. 2000),
and in any event his challenge is completely unfounded; (2) the district court did not,
in fact, assess any gun-possession enhancement; and (3) not only did Oviedo stipulate
to the drug quantity he now challenges, see United States v. Nguyen,
    46 F.3d 781
    ,
783 (8th Cir. 1995) (defendant who voluntarily exposes himself to specific sentence
may not challenge that punishment on appeal), but the assessed drug quantity is well
supported in the presentence report, which Oviedo did not challenge, see United
States v. LaRoche,
    83 F.3d 958
    , 959 (8th Cir. 1996) (per curiam) (district court may
accept as true all factual allegations contained in PSR that are not specifically
objected to by parties).
Finally, any claim by Oviedo asserting ineffective assistance of counsel should
be raised in a postconviction proceeding. See United States v. Cain,
    134 F.3d 1345
    ,
1352 (8th Cir. 1998). Having found no other nonfrivolous issues for appeal upon our
independent review pursuant to Penson v. Ohio,
    488 U.S. 75
     (1988), we affirm the
judgment of the district court, and we grant counsel’s motion to withdraw.
-2-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-