United States v. Orlando Ponce

701 F. App'x 532

Opinion

PER CURIAM.

Orlando Damian Ponce directly appeals after he pleaded guilty to illegal reentry and the district court 1 sentenced him to a prison term at the bottom of the calculated Guidelines range. His counsel has moved for leave 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), arguing that the district court miscalculated the Guidelines range. Ponce has filed a pro se brief arguing that the court miscalculated the Guidelines range by failing to use the 2016 Guidelines manual, and that defense counsel failed to communicate effectively with him about the case.

To begin, to the extent Ponce raised an ineffective-assistance claim, we decline to consider it on direct appeal. See United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir. 2006) (ineffective-assistance claims are usually best litigated in collateral proceedings, where record can be properly developed). Further, we find no error in the district court’s calculation of the Guidelines range. See United States v. Turner, 781 F.3d 374, 393 (8th Cir. 2015) (this court reviews district court’s application of Guidelines de novo, and its findings of fact for clear error); United States v. Menteer, 408 F.3d 445, 446 (8th Cir. 2005) (per curiam) (unobjected-to facts in pre-sentence report are deemed admitted). We also reject Ponce’s Guidelines-manual argument because the district court used the 2016 Guidelines manual.

In addition, we have independently reviewed the record under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and have found no nonfrivolous issues for appeal. Accordingly, we grant counsel’s motion to withdraw, and affirm the judgment.

1 . The Honorable Kristine G. Baker, United States District Judge for the Eastern District of Arkansas.