United States v. Thomas Stoltenberg , 212 F. App'x 584 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3195
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Thomas Stoltenberg, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 26, 2006
Filed: January 22, 2007
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Before RILEY, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Thomas Stoltenberg pleaded guilty to possessing with intent to distribute
methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). On appeal,
counsel moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738
(1967), asking us to review the reasonableness of the sentence the district court1
imposed. We denied counsel’s withdrawal motion and ordered supplemental briefing
as to whether the government breached the parties’ plea agreement by not filing at
sentencing a motion under U.S.S.G. § 3E1.1(b), whether any such breach is subject
1
The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
to review for plain error or otherwise, and, if so, whether relief is warranted under the
applicable standard of review.
Upon reviewing the parties’ supplemental briefs, we agree with the government
that under our governing precedent, Stoltenberg waived his right to raise an argument
based on the government’s failure to move for a third level acceptance-of-
responsibility reduction. See United States v. Cohen, 60 F.3d 460, 462 (8th Cir. 1995)
(defendant’s failure to allege breach of agreement at sentencing, restate terms of
agreement in open court, or move to withdraw plea based on breach constituted
waiver of issue); United States v. Archambault, 344 F.3d 732, 737 (8th Cir. 2003).
We also conclude that Stoltenberg’s sentence within the unobjected-to Guidelines
range was not unreasonable.
Accordingly, we affirm.
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