United States v. Jorge Salazar-Gomez

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1478
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Jorge Salazar-Gomez, also known as * District of Nebraska.
Manuel Salazar-Gomez, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 29, 2008
Filed: January 31, 2008
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Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Jorge Salazar-Gomez (Salazar-Gomez) appeals the 120-month prison sentence
the district court1 imposed after Salazar-Gomez pled guilty to conspiring to distribute
and possess with intent to distribute 50 grams or more of methamphetamine, in
violation of 21 U.S.C. § 846, and distributing and possessing with intent to distribute
50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1).
Salazar-Gomez’s counsel moved to withdraw and filed a brief under Anders v.
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
California, 386 U.S. 738 (1967), arguing (1) the district court erred in sentencing
Salazar-Gomez to the statutory mandatory minimum sentence because a co-defendant
received a less severe sentence; (2) the requirement of a government motion for
substantial assistance to depart below the mandatory minimum violates the separation
of powers by giving too much power to the prosecution; and (3) the government’s
delay in indicting Salazar-Gomez prejudiced his ability to provide substantial
assistance.
These arguments are without merit. First, the district court had no discretion,
without a government departure motion or Salazar-Gomez’s qualification for safety-
valve relief, to sentence him below the mandatory minimum sentence. See United
States v. Gregg, 451 F.3d 930, 937 (8th Cir. 2006) (rejecting an argument that the
district court had discretion to determine whether the ultimate sentence is reasonable
and to impose a non-Guidelines sentence when a portion of the sentence is the result
of a mandatory minimum sentence; “Booker2 does not relate to statutorily-imposed
sentences”); United States v. Chacon, 330 F.3d 1065, 1066 (8th Cir. 2003) (stating
“the only authority for the district court to depart below the statutorily mandated
minimum sentence is found in 18 U.S.C. § 3553(e) and (f), which apply only when
the government makes a motion for substantial assistance or when the defendant
qualifies under the safety valve relief”) (citing United States v. Auginash, 266 F. 3d
781, 785 (8th Cir. 2001).
Second, requiring a government motion to depart below the mandatory
minimum does not violate the separation of powers doctrine. See United States v.
Holbdy, 489 F.3d 910, 914 (8th Cir. 2007) (requiring a government motion before the
court can deviate from a statutory mandatory minimum sentence for defendant’s
substantial assistance does not violate the separation of powers doctrine, and Booker
does not provide an avenue to reconsider such holding).
2
United States v. Booker, 543 U.S. 220 (2005).
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Third, Salazar-Gomez’s guilty plea forecloses his challenge to the alleged pre-
indictment delay, see United States v. Staples, 435 F.3d 860, 864 (8th Cir.) (holding
a valid guilty plea waives nonjurisdictional defects or errors), cert. denied, 127 S. Ct.
148 (2006), and in any event, there has been no showing the delay caused Salazar-
Gomez to lose access to any specific testimony or documents that would have aided
his defense, see United States v. Hance, 501 F.3d 900, 905-06 (8th Cir. 2007)
(discussing pre-indictment delay).
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues. We grant counsel leave to withdraw, and
we affirm.
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