United States v. David Franco-Tinajero , 450 F. App'x 551 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2712
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
David Franco-Tinajero, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 22, 2011
Filed: December 29, 2011
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Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
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PER CURIAM.
David Franco-Tinajero pleaded guilty to conspiracy to possess with intent to
distribute at least 500 grams of a mixture or substance containing methamphetamine,
in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A). The district court1 sentenced
him to 120 months in prison and 5 years of supervised release. On appeal, Franco-
Tinajero’s counsel moves to withdraw, and has filed a brief under Anders v.
California, 386 U.S. 738 (1967), arguing that the sentence is substantively
unreasonable.
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The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas.
Based on his plea-agreement stipulations, Franco-Tinajero received the
statutory mandatory minimum sentence applicable to his offense. Accordingly, we
reject his argument that the sentence is substantively unreasonable. See United States
v. Gregg, 451 F.3d 930, 937 (8th Cir. 2006) (United States v. Booker, 543 U.S. 220(2005), does not relate to statutorily imposed sentences); United States v. Chacon,
330 F.3d 1065, 1066 (8th Cir. 2003) (only authority for court to depart from statutory
minimum sentence is in 18 U.S.C. § 3553(e) and (f), which apply only when
government moves for downward departure based on substantial assistance or
defendant qualifies for safety-valve relief). Further, having reviewed the record
under Penson v. Ohio, 488 U.S. 75 (1988), we find no nonfrivolous issues for appeal.
Accordingly, we grant counsel’s motion to withdraw, and we affirm.
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