United States v. Earl Aniceto Ochoa , 387 F. App'x 646 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3732
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
Earl Aniceto Ochoa, * [UNPUBLISHED]
*
Appellant. *
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Submitted: July 23, 2010
Filed: August 2, 2010
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Before LOKEN, MURPHY, and BENTON, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal, Earl Ochoa challenges the statutory mandatory
minimum sentence the district court1 imposed following his guilty plea to knowingly
and intentionally conspiring to distribute 50 grams or more of “actual”
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846.
Counsel has moved to withdraw, and has filed a brief under Anders v. California, 386
1
The HONORABLE RICHARD H. KYLE, United States District Judge for the
District of Minnesota.
U.S. 738 (1967), arguing that Ochoa’s sentence is unreasonable and greater than
necessary to accomplish the sentencing goals of 18 U.S.C. § 3553(a).
We conclude that the district court lacked authority to impose a sentence below
the statutory minimum because the government had not moved for a departure based
on substantial assistance and Ochoa was not eligible for safety-valve relief. See
United States v. Chacon, 330 F.3d 1065, 1066 (8th Cir. 2003) (only authority to depart
from statutory minimum is in 18 U.S.C. § 3553(e) and (f), which apply only when
government moves for departure based on substantial assistance or defendant qualifies
for safety-valve relief); see also United States v. Gregg, 451 F.3d 930, 937 (8th Cir.
2006), confirming that United States v. Booker, 543 U.S. 220 (2005), does not relate
to statutorily-imposed sentences.
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no non-frivolous issues. Accordingly, we affirm the district court’s
judgment, and we grant counsel’s motion to withdraw conditioned on counsel
informing Ochoa about the procedures for seeking rehearing from this court and filing
a petition for a writ of certiorari from the Supreme Court of the United States.
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