United States v. Tepozotlan-Gonzales ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-4041
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Maria Del Rosario *
Tepozotlan-Gonzales, also known * [UNPUBLISHED]
as Fatima Santana-Coronado, also *
known as Georgia Andrade-Tapia, *
also known Rosio Araceli Rico- *
Colorado, also known as Rita Aguilar, *
also known as Francisca Sanchez- *
Garcia, also known as Virginia *
Colorado-Rodiriguez, also known as *
Brenda Ruiz Pineda, also known as *
Veronica Lizarrega, *
*
Appellant. *
___________
Submitted: November 5, 2007
Filed: November 9, 2007
___________
Before BYE, RILEY, and MELLOY, Circuit Judges.
___________
PER CURIAM.
Maria Del Rosario Tepozotlan-Gonzales challenges the 42-month sentence the
district court1 imposed after she pleaded guilty to conspiring to transport stolen goods
in interstate commerce, in violation of 18 U.S.C. §§ 2314, 371, and 2. Tepozotlan-
Gonzales’s 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 imposing
enhancements for the amount of loss, the number of victims, and being in the business
of receiving stolen property. Tepozotlan-Gonzales argues in a pro se brief that the
district court usurped the role of the jury in imposing the enhancements, and that
counsel was ineffective for inducing her to plead guilty without fully informing her
of the consequences and for failing to adequately object to the presentence report
(PSR).
Reviewing the district court’s application of the Guidelines de novo and its
factual findings for clear error, see United States v. Rodriguez, 484 F.3d 1006, 1014
(8th Cir. 2007), cert. denied, 76 U.S.L.W. 3065 (U.S. Oct. 1, 2007) (No. 07-161), we
find that the enhancements imposed by the district court were appropriate:
Tepozotlan-Gonzales’s plea-hearing admissions and the uncontested facts in the PSR
support the district court’s finding that her co-conspirators’ actions were reasonably
foreseeable to Tepozotlan-Gonzales and warranted the enhancements, see United
States v. Pierce, 479 F.3d 546, 549 (8th Cir. 2007) (defendant in criminal conspiracy
is responsible for offenses committed by fellow conspirators if defendant was member
of conspiracy when offense was committed, and if offense was committed in
furtherance of and as foreseeable consequence of conspiracy), and also support the
finding that she was in the business of receiving stolen property, see U.S.S.G. § 2B1.1
comment. (n.5) (setting out non-exhaustive list of factors to consider).
1
The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
-2-
We also reject Tepozotlan-Gonzales’s argument that the sentencing
enhancements had to be proven to a jury beyond a reasonable doubt, as the district
court treated the Guidelines as advisory (and in fact deviated below the Guidelines
range). See United States v. Booker, 543 U.S. 220, 233-37, 245, 258-59 (2005) (Sixth
Amendment problem resulting from mandatory nature of Guidelines is remedied by
making Guidelines advisory); United States v. Salter, 418 F.3d 860, 862 (8th Cir.
2005) (after Booker, district court may enhance sentence based on judge-found facts
if court views Guidelines as advisory). Finally, Tepozotlan must pursue any
ineffective-assistance claims in a proceeding under 28 U.S.C. § 2255. See United
States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we have found no nonfrivolous issues for appeal. Accordingly, we affirm,
we grant counsel’s motion to withdraw, and we deny Tepozotlan-Gonzales’s motion
for appointment of counsel.
______________________________
-3-