United States v. Angel Perez-Abarca

Eighth Circuit

United States v. Angel Perez-Abarca

350 F. App'x 86

CourtCourt of Appeals for the Eighth Circuit

DecidedNovember 5, 2009

Docket08-2655

StatusUnpublished

This text of 350 F. App'x 86 (United States v. Angel Perez-Abarca) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Angel Perez-Abarca, 350 F. App'x 86 (8th Cir. 2009).

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Opinion

PER CURIAM.

Angel Perez-Abarca appeals from the 120-month prison sentence the district court 1 imposed after he pleaded guilty to conspiring to distribute 500 grams or more of a substance containing methamphetamine, and 50 grams or more of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Counsel has moved to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), raising as a potential issue that the sentence was unduly harsh. Abarca has filed a pro se supplemental brief suggesting that his counsel was ineffective.

Reviewing the sentence for abuse of discretion, we must first ensure that there were no significant procedural errors, and then consider the substantive reasonableness of the sentence. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc). We conclude that the district court committed no procedural error. We further conclude that the sentence is not unreasonable, because 120 months was the statutory minimum and Abarca did not demonstrate that he was eligible for safety-valve relief. See United States v. Gregg, 451 F.3d 930, 937 (8th Cir.2006) (district court’s lack of discretion to impose non-Guidelines sentence below statutory minimum); United States v. Warford, 439 F.3d 836, 844 (8th Cir.2006) (defendant’s burden of showing eligibility for safety-valve relief). Further, Abarca must pursue his ineffective-assistance claims in a proceeding under 28 U.S.C. § 2255. See United States v. Lewis, 483 F.3d 871, 873 n. 2 (8th Cir.2007).

*88 Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no non-frivolous issue for appeal. Accordingly, we affirm the district court’s judgment, and we grant counsel’s motion to withdraw, subject to counsel informing appellant about procedures for seeking rehearing and filing a petition for certiorari.

1

. The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa.

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PER CURIAM.

Angel Perez-Abarca appeals from the 120-month prison sentence the district court 1 imposed after he pleaded guilty to conspiring to distribute 500 grams or more of a substance containing methamphetamine, and 50 grams or more of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Counsel has moved to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), raising as a potential issue that the sentence was unduly harsh. Abarca has filed a pro se supplemental brief suggesting that his counsel was ineffective.

Reviewing the sentence for abuse of discretion, we must first ensure that there were no significant procedural errors, and then consider the substantive reasonableness of the sentence. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc). We conclude that the district court committed no procedural error. We further conclude that the sentence is not unreasonable, because 120 months was the statutory minimum and Abarca did not demonstrate that he was eligible for safety-valve relief. See United States v. Gregg, 451 F.3d 930, 937 (8th Cir.2006) (district court’s lack of discretion to impose non-Guidelines sentence below statutory minimum); United States v. Warford, 439 F.3d 836, 844 (8th Cir.2006) (defendant’s burden of showing eligibility for safety-valve relief). Further, Abarca must pursue his ineffective-assistance claims in a proceeding under 28 U.S.C. § 2255. See United States v. Lewis, 483 F.3d 871, 873 n. 2 (8th Cir.2007).

*88 Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no non-frivolous issue for appeal. Accordingly, we affirm the district court’s judgment, and we grant counsel’s motion to withdraw, subject to counsel informing appellant about procedures for seeking rehearing and filing a petition for certiorari.

1

. The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa.

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