United States v. Misael Ortiz

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1734
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Misael Ortiz, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 25, 2005
Filed: June 2, 2005
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Before MELLOY, McMILLIAN, and GRUENDER, Circuit Judges.
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PER CURIAM.
Misael Ortiz appeals the sentence the district court1 imposed after a jury found
him guilty of conspiring to distribute and possess with intent to distribute 100
kilograms or more of marijuana, in violation of 21 U.S.C. § 846; and possessing with
intent to distribute, and aiding and abetting the possession with intent to distribute,
about 115 pounds of marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and
18 U.S.C. § 2. For the reasons that follow, we affirm.
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
In a brief under Anders v. California, 386 U.S. 738 (1967), Ortiz’s counsel
challenges the denial of a minor-role adjustment, because Ortiz’s role was merely to
provide a temporary storage facility for the marijuana after it arrived by truck from
Chicago. Upon careful review, we conclude the district court’s finding was not
clearly erroneous. See United States v. Bustos-Torres, 396 F.3d 935, 947-48 (8th Cir.
2005) (standard of review; defendant has burden to prove role reduction is
warranted), petition for cert. filed, (Apr. 29, 2005) (No. 04-9968); United States v.
Belitz, 141 F.3d 815, 818-19 (8th Cir. 1998) (upholding finding that defendant’s
voluntary and knowing storage of substantial amount of drugs was sufficient to
preclude minor-role decrease).
We also grant Ortiz’s motion to file an amended counseled brief, and we have
considered his subsequent filing under Federal Rule of Appellate Procedure 28(j).
The district court imposed Ortiz’s sentence prior to the Supreme Court’s decision in
United States v. Booker, 125 S. Ct. 738 (2005). The sentence included an
obstruction-of-justice enhancement based on the court’s finding that Ortiz committed
perjury at trial, and Ortiz asserted no objection under the Sixth Amendment or
otherwise. While we now know it was error to apply the federal Sentencing
Guidelines in a mandatory fashion, Ortiz has not demonstrated “a ‘reasonable
probability,’ based on the appellate record as a whole, that but for the error he would
have received a more favorable sentence.” See United States v. Pirani, No. 03-2871,
2005 WL 1039976, at *4 (8th Cir. Apr. 29, 2005) (en banc) (plain-error review).
Ortiz does not contend his trial testimony does not support an obstruction-of-justice
adjustment, and Ortiz’s 97-month sentence is not illegal under the advisory
Guidelines regime mandated by Booker. See United States v. Finck, No. 03-3876,
2005 WL 1109474, at *3, *6 (8th Cir. May 11, 2005).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we have found no other nonfrivolous issues. Accordingly, we grant
counsel’s motion to withdraw, and we affirm.
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