United States v. David Rojas-Perez

Eighth Circuit

United States v. David Rojas-Perez

133 F. App'x 356

CourtCourt of Appeals for the Eighth Circuit

DecidedJune 8, 2005

Docket04-1836

StatusUnpublished

This text of 133 F. App'x 356 (United States v. David Rojas-Perez) 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.

Bluebook

United States v. David Rojas-Perez, 133 F. App'x 356 (8th Cir. 2005).

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Opinion

PER CURIAM.

David Rojas-Perez appeals the sentence the district court 1 imposed after he pleaded guilty to conspiring to distribute 500 grams or more of a methamphetamine mixture, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. His counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Rojas-Perez has filed a pro se supplemental brief arguing that, because the district court enhanced his sentence under U.S.S.G. § 2Dl.l(b)(l) (possessing dangerous weapon in connection with drug offense), he was sentenced on charges not contained in the indictment and the sentence violates his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) . We affirm.

The pro se arguments fail. Although Rojas-Perez initially objected to the sentencing enhancement under section 2Dl.l(b)(l), he later withdrew his objection. He is thus foreclosed from raising issues here regarding the section 2Dl.l(b)(l) enhancement. See United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (claim relinquished below need not be addressed on appeal); United States v. Tulk, 171 F.3d 596, 600 (8th Cir.1999) (issue deliberately waived below is not reviewed, even for plain error).

Upon careful review of the record under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we note that the district court imposed Rojas-Perez’s sentence prior to the Supreme Court’s decision in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) . While we now know it was error to apply the federal Sentencing Guidelines in a mandatory fashion, Rojas-Perez has not demonstrated “a ‘reasonable probability,’ based on the appellate record as a whole, that but for the error he would have received a more favorable sentence.” See United States v. Pirani, 406 F.3d 543, 549-54 (8th Cir.2005) (en banc) (plain error review when mandatory-Guidelines issue not raised below; plain error review is governed by the four-part test of Olano, 507 U.S. at 732-36, 113 S.Ct. 1770). We find no other nonfrivolous issues.

*357 Accordingly, we affirm, and we grant counsel’s motion to withdraw.

1

. The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa.

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PER CURIAM.

David Rojas-Perez appeals the sentence the district court 1 imposed after he pleaded guilty to conspiring to distribute 500 grams or more of a methamphetamine mixture, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. His counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Rojas-Perez has filed a pro se supplemental brief arguing that, because the district court enhanced his sentence under U.S.S.G. § 2Dl.l(b)(l) (possessing dangerous weapon in connection with drug offense), he was sentenced on charges not contained in the indictment and the sentence violates his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) . We affirm.

The pro se arguments fail. Although Rojas-Perez initially objected to the sentencing enhancement under section 2Dl.l(b)(l), he later withdrew his objection. He is thus foreclosed from raising issues here regarding the section 2Dl.l(b)(l) enhancement. See United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (claim relinquished below need not be addressed on appeal); United States v. Tulk, 171 F.3d 596, 600 (8th Cir.1999) (issue deliberately waived below is not reviewed, even for plain error).

Upon careful review of the record under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we note that the district court imposed Rojas-Perez’s sentence prior to the Supreme Court’s decision in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) . While we now know it was error to apply the federal Sentencing Guidelines in a mandatory fashion, Rojas-Perez has not demonstrated “a ‘reasonable probability,’ based on the appellate record as a whole, that but for the error he would have received a more favorable sentence.” See United States v. Pirani, 406 F.3d 543, 549-54 (8th Cir.2005) (en banc) (plain error review when mandatory-Guidelines issue not raised below; plain error review is governed by the four-part test of Olano, 507 U.S. at 732-36, 113 S.Ct. 1770). We find no other nonfrivolous issues.

*357 Accordingly, we affirm, and we grant counsel’s motion to withdraw.

1

. The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa.

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133 F. App'x 356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-david-rojas-perez-ca8-2005.

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