United States v. F. Corona Moret , 256 F. App'x 873 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2966
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United States of America, *
*
Appellee, *
*
v. *
Francisco Corona-Moret, also known *
as Francisco Corona-Verduzco, also *
known as Pallin LNU, also known as *
Javier Corona-Verduzco, *
*
Appellant. *
* Appeal from the United States
------------------------ * District Court for the
* Western District of Missouri.
United States of America, *
* [UNPUBLISHED]
Appellee, *
*
v. *
*
Francisco Corona-Moret, also known *
as Francisco Corona-Verduzco, also *
known as Javier Corona-Verduzco, *
also known as Pallin, *
*
Appellant. *
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Submitted: November 29, 2007
Filed: December 10, 2007
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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Francisco Corona-Moret appeals the sentences the district court1 imposed after
he pleaded guilty in two consolidated cases to possessing 50 grams or more of
methamphetamine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(A); conspiring to distribute 50 grams or more of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846; unlawfully entering the
United States after having been previously deported, in violation of 8 U.S.C. § 1326;
and intimidating an individual with the intent to prevent that person’s testimony in an
official proceeding, in violation of 18 U.S.C. § 1512(b)(1). On appeal, his counsel has
moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738(1967), arguing that the sentence is unreasonable and violates the Eighth
Amendment’s Cruel and Unusual Punishment Clause. For the reasons discussed
below, we modify one of the judgments to correct clerical errors, we grant counsel’s
motion to withdraw, and we affirm the judgments as modified.
At sentencing, the district court calculated an advisory Guidelines range of 135
to 168 months in prison. The court then expressly stated its intent to sentence Corona-
Moret at the bottom of his Guidelines range: a “total” term of 135 months. The court
imposed concurrent prison terms of 135 months on the possession count, 24 months
on the illegal re-entry count, and 120 months on the witness-intimidation count.
Although the court did not impose a specific sentence on the conspiracy count, it
stated that “in case 00368,” which included the conspiracy count, “the sentence would
be 135 months, the same as the sentence in case number 00194.”
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
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Reviewing the record independently pursuant to Penson v. Ohio, 488 U.S. 75(1988), we conclude from the entire sentencing pronouncement that the district court
intended to sentence Corona-Moret to a term of 135 months in prison for the
conspiracy offense. See United States v. Tramp, 30 F.3d 1035, 1037 (8th Cir. 1994)
(if actual verbal judgment is ambiguous, intent of sentencing court may be construed
from entire sentencing pronouncement). However, the written judgment for case
number 4:05-cr-00368 incorrectly states that a 168-month prison term was imposed
on the first count, and also incorrectly describes this count as charging a possession
offense, rather than a conspiracy offense. Accordingly, we modify the judgment in
that case to reflect a 135-month sentence on Count One, charging Corona-Moret with
conspiring to distribute 50 grams or more of methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. See 28 U.S.C. § 2106 (appellate court may
modify any judgment of court brought before it for review); United States v. Raftis,
427 F.2d 1145, 1146 (8th Cir. 1970) (per curiam) (oral pronouncement prevails over
contrary judgment); see also United States v. Mills, 9 F.3d 1132, 1139 (5th Cir. 1993)
(modifying sentence instead of remanding where there was no doubt of district court’s
intent and it would waste judicial resources to remand case).
As to the issues raised by counsel in the Anders brief, we conclude that appeal
waivers contained in Corona-Moret’s plea agreements preclude a challenge to the
reasonableness of the sentence. See United States v. Andis, 333 F.3d 886, 890 (8th
Cir. 2003) (en banc) (defendant must enter into plea agreement and waiver knowingly
and voluntarily for these agreements to be valid); United States v. Estrada-Bahena,
201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam) (enforcing appeal waiver in Anders
case). We also conclude that, to the extent the Eighth Amendment argument falls
outside the scope of the appeal waivers, Corona-Moret’s 135-month sentence does not
violate the Cruel and Unusual Punishment Clause. See 21 U.S.C. § 841(b)(1)(A)
(statutory imprisonment range for violation involving 50 grams or more of
methamphetamine is 10 years to life); United States v. Weis, 487 F.3d 1148, 1154 (8th
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Cir. 2007) (“It is rare for a term of years within the authorized statutory range to
violate the Eighth Amendment.”).
Accordingly, we grant counsel’s motion to withdraw, and we affirm the
judgments as modified.
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