United States v. Juan Carlos Neri ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-1034
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Juan Carlos Neri, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: May 29, 1998
Filed: June 8, 1998
___________
Before WOLLMAN, BEAM, and HANSEN, Circuit Judges.
___________
PER CURIAM.
Juan Carlos Neri pleaded guilty to conspiring to distribute methamphetamine and
cocaine, and to possess them with intent to distribute, in violation of 21 U.S.C. § 846.
Departing upon the government&s motion to a point below the applicable Guidelines
range and the statutory mandatory minimum sentence, the district court1 sentenced Neri
to 84 months imprisonment and five years supervised release. This appeal followed.
After appellate counsel moved to withdraw pursuant to Anders v. California, 386 U.S.
1
The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.
738 (1967), we granted Neri permission to file a pro se supplemental brief, but he has
not done so. We affirm.
In his Anders brief, counsel raises a challenge to the district court&s drug-quantity
finding. Normally we review a district court&s factual findings at sentencing for clear
error, and we review de novo the application of the Guidelines to the facts. See United
States v. Darden, 70 F.3d 1507, 1544 (8th Cir. 1995), cert. denied, 517 U.S. 1149 and
cert. denied, 518 U.S. 1026 (1996). The Anders-brief argument, however, suffers from
a number of deficiencies. First, the court&s drug-quantity finding is consistent with the
parties& plea-agreement stipulation that Neri was to be held responsible for between
three and ten kilograms of methamphetamine, for a base offense level of 34. See
United States v. Early, 77 F.3d 242, 244 (8th Cir. 1996) (per curiam) (defendant cannot
challenge Guidelines application on appeal where defendant&s plea agreement expressly
sets forth base offense level and type of controlled substance).
Second, the issue raised here is reviewable only to the extent that Neri is
challenging a quantity of drugs, which, when deducted from the amount the court
attributed to his offense, would produce a Guidelines sentencing range below the
departure sentence Neri received. See United States v. Baker, 64 F.3d 439, 441 (8th
Cir. 1995). Finally, even assuming the argument is not foreclosed and Neri&s sentence
is reviewable, Neri did not challenge his base offense level at sentencing, thus limiting
us to reviewing the calculation of his base offense level for plain error, which we do not
find. See U.S. Sentencing Guidelines Manual § 1B1.3(a)(1)(A), (B) (1997)
(defendant&s base offense level is calculated based on acts defendant commits, and also
on all reasonably foreseeable acts and omissions of others in furtherance of jointly
undertaken criminal activity); United States v. Montanye, 996 F.2d 190, 192 (8th Cir.
1993) (en banc) (explaining plain-error review).
-2-
Upon review of the record in accordance with Penson v. Ohio, 488 U.S. 75, 80
(1988), we find no nonfrivolous issues. Accordingly, we affirm the judgment of the
district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT..
-3-