United States v. Leonardo Vargas-Gonzalez

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2394
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Leonardo Vargas-Gonzalez, *
also known as Chilango, * [UNPUBLISHED]
*
Appellant. *
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Submitted: April 3, 2008
Filed: April 9, 2008
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Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Acknowledging that his plea subjected him to a statutory minimum prison term
of 10 years, Leonardo Vargas-Gonzalez pleaded guilty to conspiring to distribute and
possess with intent to distribute methamphetamine and cocaine. See 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(ii), (viii), 846. The district court1 calculated an advisory
Guidelines imprisonment range of 120-135 months, and sentenced Vargas-Gonzalez
to 120 months. On appeal, his counsel seeks permission to withdraw and has filed a
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
brief under Anders v. California, 386 U.S. 738 (1967), arguing that the sentence is
unreasonable in light of Vargas-Gonzalez’s Category I criminal history and the lower
sentences of some co-conspirators, and that the requirement of a government motion
to depart below the mandatory minimum violates the separation-of-powers doctrine.
We conclude that Vargas-Gonzalez’s sentence is not unreasonable because the
district court did not have discretion to sentence him below 120 months, absent a
substantial-assistance motion by the government under 18 U.S.C. § 3553(e) or
qualification for relief from the statutory minimum under 18 U.S.C. § 3553(f). See
United States v. Gregg, 451 F.3d 930, 937 (8th Cir. 2006); United States v. Chacon,
330 F.3d 1065, 1066 (8th Cir. 2003); see also United States v. Harris, 493 F.3d 928,
932 (8th Cir. 2007) (court of appeals accords sentence within advisory Guidelines
range presumption of reasonableness), cert. denied, 128 S. Ct. 1263 (2008). We have
previously held that the requirement of 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).
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues. Accordingly, we affirm the judgment of
the district court. We also grant counsel’s request to withdraw, subject to the
condition that counsel comply with the requirements of Part V of this court’s Plan to
Implement the Criminal Justice Act by advising Vargas-Gonzalez of the procedures
for filing a petition for writ of certiorari pro se.
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