United States v. Agustin Nunez-Reynoso

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Michael J. Melloy and Bobby E. Shepherd (UNPUBLISHED); Granting [3882213-3] motion to withdraw as counsel subject to counsel notifying the appellant about procedures for seeking rehearing or filing a petition for certiorari [3861990-2] Denying as moot appellant's motion to correct a clerical error and appellant's motion for appointment of new appellate counsel. [3951953-2] [3989608] [11-3110]

United States Court of Appeals
For the Eighth Circuit
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No. 11-3110
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Agustin Nunez-Reynoso,
also known as Shorty
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: December 6, 2012
Filed: January 2, 2013
[Unpublished]
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Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.
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PER CURIAM.

Appellate Case: 11-3110

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Date Filed: 01/02/2013 Entry ID: 3989608

Agustin Nunez-Reynoso (Reynoso) appeals the district court’s1 judgment
entered after a jury found him guilty of conspiring to distribute and possess with
intent to distribute drugs including cocaine and methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(C), and 846. The district court sentenced him
to 240 months in prison and 5 years of supervised release. Reynoso’s counsel has
moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967),
arguing that the evidence was insufficient to support the conviction and the drug
quantity attributed to Reynoso at sentencing; Reynoso has filed a pro se brief raising
additional issues.
We hold that the evidence was sufficient to support the conviction. See United
States v. Birdine, 515 F.3d 842, 844 (8th Cir. 2008) (this court reviews sufficiency
of evidence in light most favorable to government, resolving evidentiary conflicts in
government’s favor and accepting all reasonable inferences that support jury’s
verdict). Walter Ochoa testified that he ran a drug-distribution organization, that
Jeremy Mendoza was his assistant, and that Reynoso was one of his suppliers. He
estimated that since 2007 he had received from Reynoso 5 to 10 kilograms of cocaine
and at least 5 pounds of methamphetamine. Mendoza testified that Reynoso was one
of Ochoa’s suppliers, and that he had received a total of at least 20 pounds of
methamphetamine and 10 to 20 kilograms of cocaine from Reynoso since 2006. See
United States v. Hernandez, 569 F.3d 893, 896 (8th Cir. 2009) (government must
prove there was agreement to distribute drugs, and defendant knew of conspiracy and
joined it). It was up to the jury to resolve any inconsistent testimony, and to assess
the credibility of Ochoa and Mendoza in light of their desire to secure sentencing
leniency. See United States v. Hodge, 594 F.3d 614, 618 (8th Cir. 2010). Reynoso’s
contention that the evidence showed only a buyer-seller agreement is unavailing, as
Reynoso sold resale quantities of drugs to both Ochoa and Mendoza on multiple

1

The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
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Date Filed: 01/02/2013 Entry ID: 3989608

occasions. See United States v. Huggans, 650 F.3d 1210, 1222-23 (8th Cir. 2011)
(evidence supported conspiracy conviction where defendant bought wholesale
quantities of drugs on regular basis for several months). The testimony likewise
supported the drug-quantity calculation set out in the presentence report, although we
note that the district court was entitled to rely on the report’s calculation in the
absence of an objection to it, see United States v. Johnson, 408 F.3d 535, 539 (8th
Cir. 2005).
As to the other issues Reynoso raises in his pro se brief, he cannot now argue
that the search of his vehicle upon his arrest exceeded the scope of the arrest warrant,
because he did not challenge the vehicle search in the district court. Cf. United States
v. Dixon, 51 F.3d 1376, 1382-83 (8th Cir. 1995) (defendant waived right to challenge
search warrant on appeal by failing to challenge it below). In addition, the district
court did not abuse its discretion in declining to appoint new counsel for Reynoso
prior to trial. See United States v. Barrow, 287 F.3d 733, 737-38 (8th Cir. 2002)
(standard of review; considerations in deciding whether to appoint new counsel).
After reviewing the record--including the entire trial transcript--under Penson
v. Ohio, 488 U.S. 75 (1988), we have found no nonfrivolous issues for appeal, and
we see no need for further briefing. Accordingly, the judgment is affirmed, and we
grant counsel’s motion to withdraw, subject to counsel informing appellant about
procedures for seeking rehearing or filing a petition for certiorari. We also deny as
moot Reynoso’s motion to correct a clerical error, and deny his motion for new
appellate counsel.
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Date Filed: 01/02/2013 Entry ID: 3989608