United States v. Jose Avalos Banderas , 411 F. App'x 932 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2408
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Jose Manuel Avalos Banderas, *
also known as Jose Avalos, * [UNPUBLISHED]
also known as Gallo, *
*
Appellant. *
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Submitted: March 1, 2011
Filed: March 4, 2011
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Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
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PER CURIAM.
Jose Banderas appeals his conviction and the 365 month sentence imposed by
the district court1 after a jury found him guilty of conspiring to distribute and to
possess with intent to distribute at least 500 grams of a mixture or substance
containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1). His
counsel has moved to withdraw, and has filed a brief under Anders v. California, 386
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The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
U.S. 738 (1967), and Banderas has filed a pro se supplemental brief. Banderas argues
that (1) counsel was ineffective; (2) he was convicted, and his sentence was enhanced
for obstruction of justice, under a preponderance-of-the-evidence standard; (3) his
criminal history score is incorrect; (4) the drug-quantity calculation and obstruction-
of-justice enhancement are erroneous; (5) the court improperly weighed the
sentencing factors; and (6) the evidence is insufficient to support the conviction and
the enhancement.
Banderas’s claim that he was convicted under a preponderance-of-the-evidence
standard is belied by the record, which reflects that the jury was instructed to convict
him only if it found the elements of the offense beyond a reasonable doubt. Further,
the evidence at trial, which we must view in the light most favorable to the verdict,
was sufficient to convict Banderas of the charged offense. See United States v.
Hoover, 543 F.3d 448, 452 (8th Cir. 2008) (standard of review).
Reviewing the sentence for abuse of discretion, we first ensure that the district
court committed no significant procedural error--such as misapplying the Guidelines,
failing to consider the 18 U.S.C. § 3553(a) factors, or failing to explain the
sentence--and then we consider the substantive reasonableness of the sentence. See
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). After careful
review, we conclude that the court committed no procedural error. See id. (discussing
procedural error). The evidence at the sentencing hearing amply supports the court’s
conclusion that Banderas engaged in conduct warranting the obstruction-of-justice
enhancement when he made threatening statements during his trial to the witnesses
testifying against him, see U.S.S.G. § 3C1.1 & comment. (n.4(A)); United States v.
Molina, 172 F.3d 1048, 1058 (8th Cir. 1999) (standard of review); and the court
properly applied a preponderance-of-the-evidence standard, see United States v.
Whiting, 522 F.3d 845, 850 (8th Cir. 2008) (government bears burden of proving facts
to support obstruction-of-justice enhancement by preponderance of evidence). We
review Banderas’s challenge to his criminal history score for plain error because he
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did not raise the issue below, see United States v. McKay, 431 F.3d 1085, 1095 (8th
Cir. 2005), and we find no error, plain or otherwise, because the district court properly
counted separately two prior sentences for criminal conduct that was separated by an
intervening arrest. See U.S.S.G. § 4A1.2(a)(2) (prior sentences always are counted
separately if they were imposed for offenses that were separated by an intervening
arrest). We decline to review Banderas’s drug-quantity challenge because he
withdrew his drug-quantity objection at sentencing. See United States v. Thompson,
289 F.3d 524, 526-27 (8th Cir. 2002). We also find nothing indicating that the court
improperly weighed any sentencing factor, and we conclude that the sentence is not
substantively unreasonable. See United States v. Johnston, 533 F.3d 972, 978-79 (8th
Cir. 2008) (sentence at high end of range not unreasonable where nothing indicated
court based it on improper or irrelevant factor, failed to consider relevant factor, or
made clear error of judgment).
Finally, we decline to consider in this direct appeal Banderas’s claim that
counsel was ineffective, see United States v. Bauer, 626 F.3d 1004, 1009 (8th Cir.
2010), and having reviewed the record independently under Penson v. Ohio, 488 U.S.
75, 80 (1988), we have found no nonfrivolous issues for appeal. Accordingly, we
affirm the district court’s judgment, and we grant counsel’s motion to withdraw,
subject to counsel informing Banderas about procedures for seeking rehearing or
filing a petition for certiorari.
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