United States v. Daniel Ramirez , 399 F. App'x 140 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-3786
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Daniel Pena Ramirez, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: October 22, 2010
Filed: October 28, 2010
___________
Before LOKEN, MURPHY, and BENTON, Circuit Judges.
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PER CURIAM.
After Daniel Pena-Ramirez (Ramirez) pled guilty to drug conspiracy and
weapon charges, the district court1 imposed the mandatory minimum of 120 months
on the drug conspiracy count, see 21 U.S.C. § 841(b)(1)(A), and the mandatory
minimum of 7 years on the firearm count after concluding that Ramirez brandished
the firearm during the underlying drug trafficking offense, see18 U.S.C.
§ 924(c)(1)(A). On appeal, counsel moved to withdraw and filed a brief under Anders
v. California, 386 U.S. 738 (1967). Ramirez filed a pro se supplemental brief.
1
The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
The arguments raised in the Anders brief fail. Counsel argues that Ramirez’s
guilty plea was involuntary, but this claim is not cognizable here because Ramirez did
not attempt to withdraw his guilty plea below. See United States v. Villareal-
Amarillas, 454 F.3d 925, 932 (8th Cir. 2006). Next, we reject counsel’s argument that
the government’s refusal to file a substantial-assistance departure motion violated due
process: nothing in the record supports such an argument and Ramirez did not even
attempt to compel the government to file a departure motion. Third, we reject
counsel’s challenge to the district court’s finding that Ramirez brandished the
handgun at issue, because the government provided evidence at sentencing that
Ramirez displayed a handgun to an undercover officer to whom Ramirez was going
to front methamphetamine to ensure that the officer would pay his drug debt. See 18
U.S.C. § 924(c)(4) (“brandish” means to display all or part of firearm in order to
intimidate person).
Finally, circuit precedent forecloses Ramirez’s argument that the plain language
of section 924(c)(1) forbids the imposition of its mandatory minimum sentence when
a defendant is subject to another larger mandatory minimum sentence. See United
States v. Cisneros-Gutierrez, 598 F.3d 997, 1007 (8th Cir. 2010); United States v.
Alaniz, 235 F.3d 386, 389 (8th Cir. 2000).2
We reviewed the record independently under Penson v. Ohio, 488 U.S. 75(1988), and found no nonfrivolous issues for appeal. Accordingly, we affirm the
judgment of the district court. We grant counsel’s motion to withdraw, subject to
counsel informing Ramirez about procedures for seeking rehearing or filing a petition
for certiorari.
______________________________
2
We are cognizant of the Supreme Court’s recent grant of certiorari in Abbott
v. United States, 130 S. Ct. 1284 (2010), and Gould v. United States, 130 S. Ct. 1283(2010) (consolidated with Abbott), to determine whether the “any other provision”
language of section 924(c)(1)(A) includes the underlying drug-trafficking offense.
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