United States v. Jesus Arellano ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2191
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Jesus Contreras Arellano, also known *
as Fabian Rodolpho Noreaga, Jr., * [UNPUBLISHED]
*
Appellant. *
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Submitted: September 6, 2005
Filed: September 8, 2005
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Before MELLOY, MAGILL, and GRUENDER, Circuit Judges.
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PER CURIAM.
Jesus Contreras Arellano unconditionally pleaded guilty to conspiring to
distribute and possess with intent to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. § 846, and the district court1 sentenced
him to 135 months in prison and 5 years supervised release. On appeal, counsel
briefed the case under Anders v. California, 386 U.S. 738 (1967), and moved to
withdraw. Arellano was granted leave to file a pro se supplemental brief, but he did
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
not do so. We address below the two arguments made by counsel, and we affirm
Arellano’s conviction and sentence.
First, we conclude that the district court did not clearly err in finding it was not
clearly improbable that Arellano possessed one or more firearms in connection with
the methamphetamine conspiracy, making him ineligible for a sentence below the
statutory minimum under the safety-valve provision and requiring an enhancement
to his base offense level under U.S.S.G. § 2D1.1(b)(1). See U.S.S.G. § 2D1.1(b)(1),
comment. (n.3) (clear-improbability standard for enhancement); United States v.
Moore, 184 F.3d 790, 794-95 (8th Cir. 1999) (applying § 2D1.1(b)(1)’s clear-
improbability standard when evaluating safety-valve eligibility; clear-error standard
of review), cert. denied, 528 U.S. 1161 (2000). In the apartment Arellano shared with
a codefendant, at least one loaded firearm was readily accessible to Arellano for at
least two days during the conspiracy period, see United States v. Savage, 414 F.3d
964, 967 (8th Cir. 2005) (district court did not clearly err where firearm was readily
accessible to defendant and would be available to him in case of dispute during drug
transaction), and that firearm was located in the same unlocked cabinet as
methamphetamine, see United States v. Cave, 293 F.3d 1077, 1079 (8th Cir. 2002)
(evidence that weapon was found in same location as drugs or drug paraphernalia
usually suffices).
Second, although the district court committed a Sixth Amendment violation by
applying the section 2D1.1(b)(1) enhancement in a mandatory Guidelines regime
based on judge-found facts, we conclude that Arellano is not entitled to relief for this
unobjected-to error under the third prong of the plain-error test we adopted in United
States v. Pirani, 406 F.3d 543, 550-53 (8th Cir. 2005) (en banc), petition for cert.
filed, __ U.S.L.W. __ (U.S. July 27, 2005) (No. 05-5547). We have scrutinized the
district court’s comments at sentencing, and Arellano cannot show a reasonable
probability that he would receive a more favorable sentence under advisory
Guidelines. See United States v. Wunder, 414 F.3d 1019, 1023 (8th Cir. 2005).
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Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we conclude that there are no nonfrivolous issues. Accordingly, we affirm
the judgment of the district court, and we grant counsel’s motion to withdraw.
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