United States v. Gustavo Adolfo Arias

45 F.3d 434, 1994 U.S. App. LEXIS 40147, 1994 WL 589456

• Court: Court of Appeals for the Eighth Circuit
• Decided: October 27, 1994
• Docket: 93-3898
• Status: Published

Opinion

45 F.3d 434
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.

UNITED STATES of America, Appellee,
v.
Gustavo Adolfo ARIAS, Appellant.

No. 93-3898.

United States Court of Appeals,
Eighth Circuit.

Submitted: Oct. 12, 1994.
Filed: Oct. 27, 1994.

Before BOWMAN and LOKEN, Circuit Judges, and STEVENS,* District Judge.

PER CURIAM.

Gustavo Adolfo Arias pled guilty to violating 21 U.S.C. Secs. 841(a)(1) and (b)(1)(A) and 18 U.S.C. Sec. 2 by aiding and abetting the possession with intent to distribute more than five kilograms of cocaine. The District Court1 sentenced Arias to the statutory mandatory minimum of 120 months in prison and also imposed five years of supervised release. Arias appeals his sentence.

After Arias filed his notice of appeal, his appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), pointing out that upon diligent review of the record counsel had not found any non-frivolous issues to raise and moving to withdraw as counsel on appeal. Having considered the Anders brief, this Court entered an order granting counsel's motion to withdraw and also granting Arias leave to file a pro se brief. Arias now has filed a pro se brief, and the government has filed a brief responding to the issues raised by Arias. Based on our review of the record, we conclude that the sentencing issues raised by Arias are wholly frivolous and entirely without merit. To the extent that Arias seeks to raise an ineffective assistance of counsel claim, this claim is not cognizable on direct appeal, see United States v. Sanchez, 927 F.2d 376, 378 (8th Cir. 1991), but should be raised instead in a proceeding under 28 U.S.C. Sec. 2255.

For the reasons stated, the appeal is dismissed. See Anders v. California, 386 U.S. at 744; 8th Cir. R. 47A(a).

* *The HONORABLE JOSEPH E. STEVENS, JR., Chief Judge, United States District Court for the Western District of Missouri, sitting by designation

1 The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota