United States v. Gerardo Jimenez , 53 F. App'x 400 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3511
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Gerardo Jimenez, * Western District of Missouri.
*
Appellant. * [UNPUBLISHED]
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Submitted: December 20, 2002
Filed: December 24, 2002
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Before WOLLMAN, FAGG, and MELLOY, Circuit Judges.
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PER CURIAM.
Gerardo Jimenez pleaded guilty to conspiring to possess with intent to
distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), and 846. The district court1 sentenced him to 87 months imprisonment and
5 years supervised release. On appeal, his counsel has moved to withdraw and filed
a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the court erred
in denying Jimenez a 3-level acceptance-of-responsibility reduction. In his pro se
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
submissions Jimenez adds that under the plea agreement he was entitled to an
acceptance reduction and the government thus breached the agreement, and that the
drug-quantity determination was unreliable and erroneous. We affirm.
The district court did not clearly err in denying an acceptance-of-responsibility
reduction, see United States v. Ervasti, 201 F.3d 1029, 1043 (8th Cir. 2000) (standard
of review), given Jimenez’s statements during his presentence interview essentially
denying some of the facts underlying his offense, see U.S.S.G. § 3E.1.1 comment.
(n.3) (2000) (evidence of timely acceptance may be outweighed by conduct of
defendant that is inconsistent with such acceptance; defendant who enters guilty plea
is not entitled to acceptance adjustment as matter of right).
Jimenez’s pro se arguments regarding drug quantity and breach of his plea
agreement are raised for the first time of appeal, and we find there was no plain error.
See United States v. Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (en banc) (plain-
error standard of review applies when issues are not raised in district court). First, the
plea agreement specifically stated that any sentencing stipulations, including the
anticipated acceptance-of-responsibility reduction, were not binding on the court.
Second, at sentencing Jimenez stipulated to the drug quantity attributable to him, see
United States v. Nguyen, 46 F.3d 781, 783 (8th Cir. 1995) (defendant who voluntarily
exposes himself to specific sentence may not challenge that punishment on appeal);
and in any event, the drug-quantity determination was based on cocaine--laboratory-
tested and weighed--that had been seized incident to a codefendant’s arrest, see
United States v. Moss, 138 F.3d 742, 745 (8th Cir. 1998) (drug-quantity
determination reviewed for clear error).
Finally, to the extent Jimenez intended to bring a claim of ineffective
assistance, this is not properly before us. See United States v. Clayton, 210 F.3d 841,
845 n.4 (8th Cir. 2000).
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Having reviewed the record independently pursuant to Penson v. Ohio, 488
U.S. 75 (1988), we find no nonfrivolous issues. Accordingly, we affirm, and we grant
counsel’s motion to withdraw.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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