United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-2078
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Jose Del Carmen Hernandez Moreno, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: September 1, 2010
Filed: September 7, 2010
___________
Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Jose Moreno appeals the 60-month prison sentence the district court1 imposed
after he pleaded guilty to conspiring to distribute 50 grams or more of
methamphetamine mixture. See 21 U.S.C. § 841(a)(1), (b)(1)(B) (5-year mandatory
minimum prison term), 846. His counsel on appeal has moved to withdraw and filed
a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the court should
have considered a mitigating-role adjustment under U.S.S.G. § 3B1.2. Moreno has
1
The Honorable Robert W. Pratt, Chief Judge, United States District Court for
the Southern District of Iowa.
filed a pro se supplemental brief challenging the Guidelines calculations and trial
counsel’s effectiveness.
The Guidelines arguments are unavailing because the prison sentence imposed
was the statutory minimum for the offense, the government had not moved for a lower
sentence based on substantial assistance, and Moreno’s possession of a firearm in
connection with the offense made him ineligible for safety-valve relief. See 18 U.S.C.
§ 3553(e) (upon government’s motion, court can impose sentence below statutory
minimum sentence to reflect defendant’s substantial assistance), (f) (court shall
impose sentence pursuant to Guidelines, without regard to statutory minimum
sentence, if court finds, inter alia, that defendant did not possess a firearm or other
dangerous weapon in connection with the offense); United States v. Chacon, 330 F.3d
1065, 1066 (8th Cir. 2003) (only authority to sentence below statutory minimum is
found in § 3553(e) and (f)). We decline to consider Moreno’s ineffective-assistance
claim on direct appeal. See United States v. Cain, 134 F.3d 1345, 1352 (8th Cir.
1998) (ineffective-assistance claim should be raised in 28 U.S.C. § 2255 motion).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issue. Accordingly, we affirm the judgment, and
we grant counsel’s motion to withdraw.
______________________________
-2-