United States v. Thomas Stoltenberg

212 F. App'x 584

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 22, 2007
• Docket: 05-3195
• Status: Unpublished

Opinion

PER CURIAM.

Thomas Stoltenberg pleaded guilty to possessing with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). On appeal, counsel moved to withdraw and fííed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asking us to review the reasonableness of the sentence the district court 1 imposed. We denied counsel’s withdrawal motion and ordered supplemental briefing as to whether the government breached the parties’ plea agreement by not filing at sentencing a motion under U.S.S.G. § 3El.l(b), whether any such breach is subject to review for plain error or otherwise, and, if so, whether relief is warranted under the applicable standard of review.

Upon reviewing the parties’ supplemental briefs, we agree with the government that under our governing precedent, Stoltenberg waived his right to raise an argument based on the government’s failure to move for a third level acceptance-of-responsibility reduction. See United States v. Cohen, 60 F.3d 460, 462 (8th Cir.1995) (defendant’s failure to allege breach of agreement at sentencing, restate terms of agreement in open court, or move to withdraw plea based on breach constituted waiver of issue); United States v. Archambault, 344 F.3d 732, 737 (8th Cir.2003). We also conclude that Stoltenberg’s sentence within the unobjected-to Guidelines range was not unreasonable.

Accordingly, we affirm.

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