United States v. Nelson Olmeda ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-2464
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Nelson Olmeda, also known as Diego
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: March 15, 2018
Filed: March 29, 2018
[Unpublished]
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Before BENTON, MURPHY, and KELLY, Circuit Judges.
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PER CURIAM.
Nelson Olmeda directly appeals the sentence imposed by the district court1
following his guilty plea to drug charges. His counsel has moved to withdraw and
1
The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri.
has submitted a brief under Anders v. California, 386 U.S. 738 (1967), discussing
whether the sentence was impermissibly enhanced under 21 U.S.C. § 851.
We conclude that, absent any allegation that the decision was based on an
improper factor, it was within the government’s discretion to subject Olmeda to the
enhanced sentence, see United States v. LaBonte, 520 U.S. 751, 761-62 (1997); and
that his prior felony drug conviction was a permissible basis for the enhancement, see
Tex. Health & Safety Code Ann. § 481.121(b)(3) (possession of more than 4 ounces
of marijuana is “state jail felony”); Texas Penal Code Ann. § 12.35 (state jail felony
is punishable by confinement for up to 2 years); United States v. Jones, 559 F.3d 831,
837 (8th Cir. 2009) (21 U.S.C. §§ 841(b)(1)(A) and 851 permit use of simple felony
drug possession conviction for enhancement).
Having independently reviewed the record pursuant to Penson v. Ohio, 488
U.S. 75 (1988), we find no nonfrivolous issues for appeal. Accordingly, we grant
counsel leave to withdraw, and we affirm.
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