United States v. Barberena-Martinez ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-1394
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Gregorio Barberena-Martinez, also * [UNPUBLISHED]
known as Jose Antonio Lopez-Garcia, *
*
Appellant. *
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Submitted: October 18, 2002
Filed: October 23, 2002
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Before McMILLIAN, BOWMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
Gregorio Barberena-Martinez (Barberena) pleaded guilty to one count of
conspiring to distribute in excess of 500 grams of a mixture or substance containing
methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846. In their Federal
Rule of Criminal Procedure 11(e)(1)(C) plea agreement, the parties stipulated to a
sentence of 151 months imprisonment. Under a second plea agreement, Barberena
waived indictment and pleaded guilty to an information charging him with unlawfully
reentering the United States following deportation after a conviction for an
aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). At a combined
sentencing, the district court1 accepted the Rule 11(e)(1)(C) plea agreement and
imposed concurrent sentences of 151 months imprisonment on the drug charge and
41 months imprisonment on the reentry charge, to be followed by concurrent
supervised release terms of 5 years and 2 years respectively. Barberena’s counsel has
moved to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738
(1967), which we construe as raising a general challenge to the sentences imposed.
Barberena has filed a pro se supplemental brief in which he argues that he was denied
effective assistance of counsel and that his drug sentence violates Apprendi v. New
Jersey, 530 U.S. 466 (2000). We affirm.
We reject the sentencing arguments because Barberena may not challenge on
appeal the 151-month drug sentence to which he stipulated, see United States v.
Nguyen, 46 F.3d 781, 783 (8th Cir. 1995), and he provides no basis for challenging
the concurrent 41-month illegal-reentry sentence nor do we see any basis for doing
so. Further, Barberena’s ineffective-assistance claim is not properly brought in this
direct criminal appeal. See United States v. Cain, 134 F.3d 1345, 1352 (8th Cir.
1998).
Having found no nonfrivolous issues following our independent review of the
record in accordance with Penson v. Ohio, 488 U.S. 75, 80 (1988), we affirm, and we
grant counsel’s motion to withdraw.
1
The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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