United States v. Santiago

35 F. App'x 633

Opinion

MEMORANDUM

Footnotes

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Jonathan Santiago appeals his guilty-plea conviction and 120-month sentence imposed for conspiracy to possess and distribute cocaine, in violation of 21 U.S.C. §§ 846 and 841. Santiago’s attorney has filed a brief and a motion to withdraw as counsel of record pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Santiago has not filed a pro se supplemental brief.

Counsel mentions three potential issues for review, the first being whether the district court erred in its application of U.S.S.G. § 5G1.3(b) to Santiago’s sentence. We find no evidence in the record that indicates that the district court erred in this regard.

Counsel next mentions the potential issue of whether the district court plainly-erred by not sua sponte applying a mitigating role adjustment to Santiago’s guideline calculations. There is nothing in the record, however, that indicates Santiago was less culpable than any other conspirator. Indeed, Santiago declined to describe his role in the conspiracy beyond admitting his involvement in the transaction described in the plea agreement. Thus, there was no plain error. See U.S.S.G. § 3B1.2; United States v. Howard, 894 F.2d 1085, 1089-90 (9th Cir.1990) (stating that defendant bears burden of showing entitlement to downward adjustment).

Finally, counsel mentions the potential issue of the district court’s denial of Santiago’s departure requests. As counsel correctly notes, however, the district court denied the requests in an exercise of its discretion. We therefore lack jurisdiction to review the district court’s decision. See United States v. Webster, 108 F.3d 1156, 1158 (9th Cir.1997).

Our independent review of the record under Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no other issues requiring further review. Accordingly, counsel’s motion to withdraw is GRANTED and the district court’s judgment is AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.