United States v. A. Hernandez-Carillo

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-4040
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Andres Hernandez-Carillo, also known *
as Jose Luis Perez-Mendez, also known * [UNPUBLISHED]
as Alberto Reyes, *
*
Appellant. *
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Submitted: March 14, 2008
Filed: March 20, 2008
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Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Andres Hernandez-Carillo (Hernandez-Carillo) appeals the 115-month prison
sentence the district court1 imposed after Hernandez-Carillo pled guilty to conspiring
to distribute 50 grams or more of methamphetamine (actual), in violation of 21 U.S.C.
§ 846. Before sentencing Hernandez-Carillo, the district court granted the
government’s U.S.S.G. § 5K1.1 motion for a downward departure and calculated the
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
115-month sentence by reducing the low end of Hernandez-Carillo’s advisory
Guidelines imprisonment range by 15%.
In a brief filed under Anders v. California, 386 U.S. 738 (1967), Hernandez-
Carillo’s counsel seeks permission to withdraw and presents arguments challenging
the reasonableness of the 115-month sentence. Upon review, we find these arguments
unpersuasive. Contrary to counsel’s first argument, we first conclude the district court
adequately considered Hernandez-Carillo’s cooperation and the risk it created to his
family. See Rita v. United States, 127 S. Ct. 2456, 2469 (2007) (explaining where the
district court listened to the defendant’s arguments for a downward departure and was
fully aware of the relevant circumstances, a reviewing court could infer from the
context and record the district court’s conclusion that such circumstances did not
warrant a lower sentence, even though the conclusion was not expressly stated).
Second, to the extent Hernandez-Carillo’s counsel argues the district court erred in its
criminal history computation, the argument has been waived. See United States v.
Thompson, 289 F.3d 524, 526-27 (8th Cir. 2002) (declining to review the district
court’s findings related to sentencing enhancement, drug quantity, and criminal
history, even for plain error, where defendant’s counsel withdrew objections to the
PSR at the sentencing hearing and asked for a sentence at the low end of the
Guidelines range). Third, we find the district court adequately and appropriately
considered the section 3553(a) factors, and did not overlook a relevant factor, give
significant weight to an improper or irrelevant factor, or make a clear error of
judgment in weighing appropriate factors—including Hernandez-Carillo’s criminal
past. See United States v. Haack, 403 F.3d 997, 1003-04 (8th Cir. 2005) (discussing
standard for reasonableness review).
We also conclude arguments in Hernandez-Carillo’s pro se supplemental brief
are unavailing. Hernandez-Carillo’s complaints regarding his counsel should be
brought, if at all, in a proceeding under 28 U.S.C. § 2255. See United States v. Harris,
310 F.3d 1105, 1111-12 (8th Cir. 2002) (holding ineffective assistance of counsel
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claims should generally be raised under § 2255 because normally the claims require
development of facts outside the record). To the extent Hernandez-Carillo is
challenging the knowing and voluntary nature of his guilty plea, that claim is not
properly before us because it was not presented to the district court. See United States
v. Mims, 440 F.2d 643, 644 (8th Cir. 1971) (per curiam) (declaring defendant’s
argument that his guilty plea was involuntary was not properly before the appellate
court because defendant did not file a motion in the district court to withdraw his
guilty plea; involuntariness of a guilty plea must first be presented to the district
court).
Finally, after reviewing the record independently under Penson v. Ohio, 488
U.S. 75, 80 (1988), we find no nonfrivolous issues for direct appeal. Thus, we grant
counsel leave to withdraw, and we affirm.
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