United States v. Raul Mijares

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-1313
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Raul Ortega Mijares, also known as *
Safari, also known as Luis Fernando * [UNPUBLISHED]
Garcia-Rios, *
*
Appellant. *
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Submitted: February 13, 2008
Filed: February 19, 2008
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Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Raul Ortega Mijares appeals the 120-month prison sentence the district court1
imposed after he pleaded guilty to a drug offense. On appeal, counsel has filed a brief
under Anders v. California, 386 U.S. 738 (1967), in which he moves to withdraw. We
affirm.
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
For reversal, counsel raises as a possible argument that the district court
mishandled this case. Upon careful review of the record, we conclude that this
argument has no merit. In particular, we find that the district court’s unobjected-to
refusal to grant safety-valve relief was not error, plain or otherwise, see United States
v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc) (describing plain-error review
that appellate court uses to correct error not raised at trial), because Mijares admitted
that he had refused to provide certain information about his offense that had been
requested by the government, see 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2(a)
(safety-valve relief requirements). Accordingly, the 10-year statutory minimum
imposed by the district court was the lowest sentence the court could legally have
imposed. See United States v. Gregg, 451 F.3d 930, 937 (8th Cir. 2006) (“Booker2
does not relate to statutorily-imposed sentences”); United States v. Chacon, 330 F.3d
1065, 1066 (8th Cir. 2003) (only authority for district court to depart from statutory
minimum sentence is found in 18 U.S.C. § 3553(e) and (f), which apply only when
government makes motion for substantial assistance or defendant qualifies for
safety-valve relief).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues. Accordingly, we grant counsel leave to
withdraw, and we affirm the judgment.
______________________________
2
United States v. Booker, 543 U.S. 220 (2005).
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