United States v. Antonio Jose Alonzo , 147 F. App'x 617 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1435
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of North Dakota.
*
Antonio Jose Alonzo, * [UNPUBLISHED]
*
Appellant. *
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Submitted: September 6, 2005
Filed: September 12, 2005
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Before ARNOLD, FAGG, AND SMITH, Circuit Judges.
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PER CURIAM.
A jury found Antonio Jose Alonzo guilty of conspiring to distribute and
possess with intent to distribute a detectable amount of marijuana and more than 500
grams of a mixture or substance containing methamphetamine, in violation of 21
U.S.C. § 846. The district court* sentenced him to life in prison and 10 years
supervised release. On appeal, counsel filed a brief under Anders v. California, 386
U.S. 738 (1967), and moved to withdraw. Alonzo was granted leave to file a pro se
*
The Honorable Ralph R. Erickson, United States District Judge for the District
of North Dakota.
supplemental brief, but he did not do so. We address counsel’s eight arguments in
the order he presents them, and we affirm Alonzo’s conviction and sentence.
First, the evidence is sufficient to support Alonzo’s conviction despite
consisting largely of testimony by coconspirators testifying under plea agreements,
a fact made known to the jury. See United States v. Tensley, 334 F.3d 790, 793-95
(8th Cir. 2003). Second, it was not a double jeopardy violation for Alonzo to be
prosecuted at the federal level after being tried for the same conduct at the state level.
See United States v. Leathers, 354 F.3d 955, 959-60 (8th Cir.), cert. denied, 125 S.
Ct. 285 (2004). Third, the district court did not violate the Sixth Amendment by
making drug-quantity findings beyond the 500 grams or more of methamphetamine
mixture found by the jury: Alonzo’s sentence is the mandatory statutory minimum
for an offender with two prior felony drug convictions whose instant offense involved
500 grams or more of methamphetamine mixture. See 21 U.S.C. § 841(b)(1)(A)(viii).
Fourth, claims of ineffective assistance of trial counsel should be raised, if at all, in
a motion under 28 U.S.C. § 2255. See United States v. Halter, 411 F.3d 949, 951 (8th
Cir. 2005) (per curiam).
Fifth, the admission of an audiotape containing statements made by Alonzo’s
wife to a confidential informant during a controlled buy did not violate the marital
privilege. See United States v. Espino, 317 F.3d 788, 795-96 (8th Cir. 2003); United
States v. Evans, 966 F.2d 398, 401 (8th Cir.), cert. denied, 506 U.S. 988 (1992).
Sixth, reversal is not warranted for a due process violation under the cumulative-error
doctrine. See United States v. Hardy, 224 F.3d 752, 757 (8th Cir. 2000). Seventh,
the record contains no suggestion that the warrant to search Alonzo’s apartment and
seize items found there was invalid. Eighth, given the jury’s verdict, it follows there
was probable cause to prosecute Alonzo. See United States v. Mechanik, 475 U.S.
66, 67 (1986).
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Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), and finding no nonfrivolous issues, we affirm Alonzo’s conviction and
sentence, and we grant counsel’s motion to withdraw.
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