United States v. Alejandro Alcala

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-3481
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Alejandro Artemio Alcala, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 29, 2012
Filed: July 13, 2012
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Before MURPHY, ARNOLD, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Alejandro Alcala pleaded guilty to three counts of distributing and possessing
with intent to distribute 5 grams or more of methamphetamine, in violation of
21 U.S.C. § 841(a)(1) and (b)(1). At sentencing, defense counsel conceded that
Mr. Alcala would be unable to bear his burden of proving that he had truthfully
provided the government with all the information and evidence he had concerning the
offense of conviction and relevant conduct, so as to warrant relief from the statutory
minimum sentence under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. The district
court1 sentenced Mr. Alcala at the bottom of the advisory Guidelines range to
concurrent prison sentences of 87 months, and also imposed concurrent supervised
release terms of 5 years and 3 years. On appeal, counsel moves to withdraw, and has
filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that
Mr. Alcala’s guilty plea was involuntary because he pleaded guilty with the belief
that he was eligible for safety-valve relief. This argument, however, is not properly
before us. See United States v. Murphy, 899 F.2d 714, 716 (8th Cir. 1990) (claim of
involuntary guilty plea first must be presented to district court).
To the extent counsel is also arguing that the district court erred in denying
safety-valve relief to Mr. Alcala, this argument fails, because the court was presented
with information that Mr. Alcala had given the government inconsistent and
incredible statements about his drug activities. See United States v. Soto, 448 F.3d
993, 995 (8th Cir. 2006) (district court’s findings are reviewed for clear error as to
completeness and truthfulness of defendant’s safety-valve proffer, for purpose of
determining whether defendant is entitled to safety-valve sentencing reduction;
defendant has burden to prove that he qualified for safety-valve sentencing
reduction).
Finally, having carefully reviewed the record under Penson v. Ohio, 488 U.S.
75 (1988), we find no nonfrivolous issues for appeal. Accordingly, we affirm the
judgment of the district court, and we grant counsel’s motion to withdraw, subject to
counsel informing appellant about procedures for seeking rehearing or filing a
petition for certiorari.
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1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
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