United States v. Jorge Cortez-Jiminez , 282 F. App'x 485 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2904
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Jorge Alberto Cortez-Jiminez, *
also known as Jorge Alberto * [UNPUBLISHED]
Cortez-Jimenez, *
*
Appellant. *
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Submitted: June 27, 2008
Filed: July 2, 2008
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Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
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PER CURIAM.
A jury found Jorge Alberto Cortez-Jiminez guilty of conspiring to distribute
more than 500 grams of a methamphetamine mixture, in violation of 21 U.S.C. §§ 846
and 841(b)(1)(A); and possessing a firearm in furtherance of drug trafficking, in
violation of 18 U.S.C. § 924(c)(1)(A). Cortez-Jiminez also pleaded guilty to illegally
reentering the United States after having been deported, in violation of 8 U.S.C.
§ 1326(a). He faced an advisory Guidelines imprisonment range of 210-262 months
on the drug offense and a statutory minimum of 60 months (consecutive) on the
firearm offense. Granting a 30-month variance as to the drug offense, the district
court1 sentenced him to a total of 240 months in prison and 5 years of supervised
release. On appeal, counsel has moved to withdraw and has filed a brief under Anders
v. California, 386 U.S. 738 (1967), arguing that the district court erred in applying a
role enhancement under U.S.S.G. § 3B1.1(b) because, while the co-conspirators acted
to benefit Cortez-Jiminez, they did not act under his authority, and there were not five
participants in the conspiracy.
Reviewing the district court’s determination that Cortez-Jiminez was a manager
or supervisor for clear error, see United States v. Plancarte-Vasquez, 450 F.3d 848,
853 (8th Cir. 2006), we conclude that the court did not err in applying the
enhancement. Undisputed facts established that at least five persons were involved
in the conspiracy, and that Cortez-Jiminez exercised decision-making authority over
the activities of some of the participants. See United States v. Rosas, 486 F.3d 374,
376 (8th Cir. 2007) (citing factors from U.S.S.G. § 3B1.1, comment. (n.4)); United
States v. Erhart, 415 F.3d 965, 973 (8th Cir. 2005) (“[T]he simple fact that a defendant
recruits new members into a conspiracy supports a finding of the defendant being a
manager or supervisor.”).
Having reviewed the record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we
find no nonfrivolous issues. Accordingly, we affirm, and we grant counsel’s motion
to withdraw.
______________________________
1
The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
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