United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-3958
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United States of America, *
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Appellee, *
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v. *
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Jose Martinez, *
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Appellant. *
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Appeals from the United States
No. 97-4004 District Court for the
___________ Northern District of Iowa
United States of America, * [UNPUBLISHED]
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Appellee, *
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v. *
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Timothy Youngbear, *
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Appellant. *
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Submitted: May 7, 1999
Filed: July 7, 1999
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Before McMILLIAN, HEANEY, and BEAM, Circuit Judges.
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PER CURIAM.
In these consolidated direct criminal appeals, Jose Martinez and Timothy
Youngbear appeal from the sentences imposed in the District Court1 for the Northern
District of Iowa following Youngbear’s guilty plea to aiding and abetting the
distribution of cocaine and methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), and 18 U.S.C. § 2; and Martinez’s guilty plea to conspiring to distribute
and possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
846. The district court sentenced Youngbear to 60 months imprisonment, 4 years
supervised release, and ordered him to pay $1,000 in restitution. The district court
sentenced Martinez to 120 months imprisonment and 8 years supervised release. For
reversal Youngbear argues that he received ineffective assistance of counsel at
sentencing, and that his prison sentence and the restitution ordered were too harsh.
Martinez argues there was insufficient evidence for the district court to find that, in
addition to the 498.62 grams of cocaine that he agreed he conspired to distribute, at
least 1½ grams of cocaine was further attributable to him as relevant conduct, which
subjected him to the 120-month mandatory minimum sentence. Appellate counsel
moved to withdraw in each case pursuant to Anders v. California, 386 U.S. 738 (1967),
and neither appellant has filed a pro se supplemental brief. For the reasons below, we
affirm the judgments of the district court.
1
The Honorable Michael J. Melloy, Chief Judge, United States District Court for
the Northern District of Iowa.
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As to Martinez’s drug-quantity argument, we conclude the district court did not
clearly err in finding that more than 500 grams of cocaine were involved. See United
States v. Payne, 119 F.3d 637, 645 (8th Cir.) (standard of review), cert. denied, 118 S.
Ct. 454 (1997). The district court credited the testimony of FBI Special Agent Kreg
Stonestreet, who testified that he had interviewed Martinez after his arrest, and that
Martinez told him he had been selling drugs for another codefendant “for some time”;
that he was aware the codefendant made monthly trips to California to obtain two to
three kilograms of cocaine at a time; that just prior to Martinez’s arrest, the
codefendant had shown him a bag containing two kilograms of cocaine; and that two
days prior to his arrest, an individual had obtained an ounce of cocaine from the
codefendant in Martinez’s presence. Based only on Stonestreet’s testimony that
Martinez had said he was present during a one-ounce sale just days before his arrest,
the total drug quantity exceeded the 500-gram minimum amount necessary to trigger
the statutory minimum, taking into account Martinez’s prior drug felony conviction.
See 21 U.S.C. § 841(b)(1)(B)(ii); U.S.S.G. § 2D1.1, comment. (n.10) (1998) (1 ounce
equals 28.35 grams); United States v. Jones, 160 F.3d 473, 480 (8th Cir. 1998)
(member of conspiracy responsible for all reasonably foreseeable acts or omissions of
others in furtherance of conspiracy); United States v. Townley, 929 F.2d 365, 370 (8th
Cir. 1991) (quantities must fall within scope of criminal activity jointly undertaken by
defendant and must be reasonably foreseeable to him); United States v. Adipietro, 983
F.2d 1468, 1472 (8th Cir. 1993) (finding on witness credibility is virtually unreviewable
on appeal).
As to Youngbear, we reject his argument that the 60-month sentence was too
harsh. Youngbear stipulated that 60 months was the mandatory minimum and agreed
that the safety-valve provision did not apply in his case. See United States v. Durham,
963 F.2d 185, 187 (8th Cir.) (defendant who agrees sentence is minimum mandated by
statutes and accepts benefit of plea agreement waives objection to sentence), cert.
denied, 506 U.S. 1023 (1992). In any event, the argument lacks merit. See United
States v. Mendoza, 876 F.2d 639, 640-41 (8th Cir. 1989) (mandatory minimum
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penalties for drug offenses do not violate Eighth Amendment’s prohibition on cruel and
unusual punishments).
We also hold the district court did not plainly err in imposing $1,000 in
restitution, to which Youngbear did not object at sentencing. See United States v.
Riebold, 135 F.3d 1226, 1231 (8th Cir.) (where defendant fails to object to restitution
order at sentencing, this court conducts plain-error review), cert. denied, 118 S. Ct.
2356 (1998). District courts have wide discretion to order restitution and may do so
even though the defendant is indigent at the time the sentence is imposed. See United
States v. Manzer, 69 F.3d 222, 229 (8th Cir. 1995). The district court considered
Youngbear’s ability to pay, as evidenced by the district court’s statements that the
amount appeared reasonable over his four-year period of supervised release and that
Youngbear had no ability to pay a fine. Although the district court did not make more
specific findings of fact regarding Youngbear’s ability to make restitution, the
importance of such findings is lessened when the defendant does not object or request
findings at sentencing. See Riebold, 135 F.3d at 1231-32. Moreover, Youngbear may
assert his indigency in any future proceeding to enforce the restitution order. See id.
at 1232.
Finally, we conclude Youngbear’s ineffective-assistance claim would be more
appropriately addressed in a 28 U.S.C. § 2255 proceeding where a record can be fully
developed. See United States v. Mitchell, 136 F.3d 1192, 1193 (8th Cir. 1998).
After reviewing the record in both cases in accordance with Penson v. Ohio, 488
U.S. 75, 80 (1988), we find no nonfrivolous issues. Accordingly, the judgments are
affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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