United States v. Arturo Vaca-Raya ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-3058
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Arturo Vaca-Raya, also known as Javier Arandas Lopez, also known as Salvador
Cervantes-Fernandez
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: February 5, 2014
Filed: February 6, 2014
[Unpublished]
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Before BENTON, BOWMAN, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Arturo Vaca-Raya directly appeals the sentence the district court1 imposed after
he pled guilty to possessing with the intent to distribute 500 grams or more of a
1
The Honorable Jimm Larry Hendren, United States District Judge for the
Western District of Arkansas.
methamphetamine mixture, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii).
The court overruled Vaca-Raya’s objection to a 2-level increase for maintaining a
residence for the purpose of distributing methamphetamine, and the resulting
advisory Guidelines sentence was life in prison. See U.S.S.G. § 2D1.1(b)(12). After
considering the parties’ arguments, the presentence report, and the 18 U.S.C.
§ 3553(a) sentencing factors, the court sentenced Vaca-Raya to 480 months in prison.
On appeal, Vaca-Raya’s counsel moves to withdraw and has filed a brief under
Anders v. California, 386 U.S. 738 (1967), in which he argues that the court erred by
applying the 2-level drug-house increase, considering convictions from almost 20
years earlier, and imposing the functional equivalent of a life sentence.
After careful review, this court holds that the district court committed no
procedural error, and the resulting sentence was not substantively unreasonable. See
United States v. Feemster, 572 F.3d 455, 461-62 (8th Cir. 2009) (en banc) (appellate
court reviews sentencing decision for abuse of discretion, first ensuring that district
court committed no significant procedural error, and then considering substantive
reasonableness). The district court did not clearly err by finding that Vaca-Raya
maintained the residence at 1100 Rhodes Avenue for the purpose of distributing
methamphetamine. See U.S.S.G. § 2D1.1(b)(12), comment. (n.17) (court should
consider extent to which defendant controlled access to or activities at premises);
United States v. Miller, 698 F.3d 699, 702, 705-06 (8th Cir. 2012) (increase applied
where, although it was unclear who owned residence, defendant controlled access to
and conducted at least four transactions at residence; factual finding that increase
applied is reviewed for clear error). The court also did not plainly err by referring to
Vaca-Raya’s prior drug-trafficking convictions–which were too old to receive
criminal history points–as they formed part of his history and characteristics and were
relevant to his knowledge and culpability. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A)
(court must consider need for sentence to promote respect for law), 3661 (no
limitation shall be placed on information sentencing court can consider concerning
background, character, and conduct of defendant); U.S.S.G. § 1B1.4 (same); United
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States v. Starfield, 563 F.3d 673, 674-75 (8th Cir. 2009) (unobjected-to procedural
error is reviewed for plain error). Regarding substantive reasonableness, Vaca-Raya
received a downward variance, and this court discerns no reason in the record for
concluding that the district court should have varied further. See Feemster, 572 F.3d
at 461-62, 464 (substantive review of sentence is narrow and deferential, and
appellate court must give due deference to district court’s decision that § 3553(a)
factors justify extent of variance); United States v. Lazarski, 560 F.3d 731, 733 (8th
Cir. 2009) (if district court varies downward from presumptively reasonable
Guidelines recommendation, it is “nearly inconceivable” that court abused its
discretion by not varying downward further).
This court has reviewed the record independently under Penson v. Ohio, 488
U.S. 75, 80 (1988), and finds no nonfrivolous issues for appeal. The judgment is
affirmed.
Allowing counsel to withdraw at this time would not be consistent with the
Eighth Circuit’s 1994 Amendment to Part V of the Plan to Implement The Criminal
Justice Act of 1964. Counsel’s motion to withdraw is denied without prejudice to
counsel refiling the motion upon fulfilling the duties set forth in the Amendment.
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