United States v. Orlando Ponce

United States Court of Appeals
For the Eighth Circuit
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No. 17-2092
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Orlando Damian Ponce
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: November 7, 2017
Filed: November 13, 2017
[Unpublished]
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Before LOKEN, MURPHY, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Orlando Damian Ponce directly appeals after he pleaded guilty to illegal
reentry and the district court1 sentenced him to a prison term at the bottom of the
1
The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas.
calculated Guidelines range. His counsel has moved for leave to withdraw, and has
filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the district
court miscalculated the Guidelines range. Ponce has filed a pro se brief arguing that
the court miscalculated the Guidelines range by failing to use the 2016 Guidelines
manual, and that defense counsel failed to communicate effectively with him about
the case.
To begin, to the extent Ponce raised an ineffective-assistance claim, we decline
to consider it on direct appeal. See United States v. Ramirez-Hernandez, 449 F.3d
824, 826-27 (8th Cir. 2006) (ineffective-assistance claims are usually best litigated
in collateral proceedings, where record can be properly developed). Further, we find
no error in the district court’s calculation of the Guidelines range. See United States
v. Turner, 781 F.3d 374, 393 (8th Cir. 2015) (this court reviews district court’s
application of Guidelines de novo, and its findings of fact for clear error); United
States v. Menteer, 408 F.3d 445, 446 (8th Cir. 2005) (per curiam) (unobjected-to facts
in presentence report are deemed admitted). We also reject Ponce’s
Guidelines-manual argument because the district court used the 2016 Guidelines
manual.
In addition, we have independently reviewed the record under Penson v. Ohio,
488 U.S. 75 (1988), and have found no nonfrivolous issues for appeal. Accordingly,
we grant counsel’s motion to withdraw, and affirm the judgment.
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