United States v. Sotero Almazan

Filing

PER CURIAM OPINION FILED - THE COURT: Duane Benton, Pasco M. Bowman and Bobby E. Shepherd (UNPUBLISHED); Denying [4099410-2] motion to withdraw as counsel without prejudice in accordance with the opinion. [4121270] [13-3205]

United States Court of Appeals
For the Eighth Circuit
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No. 13-3205
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Sotero Almazan
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: February 3, 2014
Filed: February 6, 2014
[Unpublished]
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Before BENTON, BOWMAN, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Sotero Almazan pled guilty to possessing with the intent to distribute 5
kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii).
Almazon directly appeals the sentence imposed by the district court.1 Counsel has
1

The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.

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filed a brief under Anders v. California, 386 U.S. 738 (1967), in which he argues that
the court erred by finding that Almazan did not qualify for a mitigating-role
adjustment under U.S.S.G. § 3B1.2, and imposed an unreasonable sentence by failing
to give appropriate weight to mitigating factors. Counsel has moved to withdraw.
After careful review, this court holds the district court did not clearly err in
finding that Almazan played more than a minor role in this offense. He admitted to
police that he had knowledge of the cocaine hidden in a secret compartment in the
vehicle he was driving, and that he and his accomplice anticipated receiving $1,000
each for transporting the cocaine. See U.S.S.G. § 3B1.2, comment. (n.3(A)) (decrease
applies if defendant’s part in offense makes him substantially less culpable than
average participant); United States v. Martinez, 168 F.3d 1043, 1046, 1048 (8th Cir.
1999) (district court’s finding regarding role defendant played is reviewed for clear
error; affirming denial of mitigating-role reduction for drug courier who transported
large quantity of methamphetamine hidden in secret compartment in trunk, as
transporting drugs is necessary part of any illegal distribution scheme); United States
v. Gayekpar, 678 F.3d 629, 639-40 (8th Cir. 2012) (defendant bears burden of
proving that mitigating-role reduction is warranted; receiving compensation for
participating in offense weighs against finding that defendant played minor role).
The district court committed no procedural sentencing error. The sentence imposed
was at the bottom of the correctly calculated Guidelines range, and was not
substantively unreasonable. See United States v. Feemster, 572 F.3d 455, 461-62 (8th
Cir. 2009) (en banc) (this court reviews sentences for abuse of discretion, and may
apply presumption of reasonableness to within-Guidelines-range sentence; district
court need not mechanically recite 18 U.S.C. § 3553(a) sentencing factors, so long
as record is clear that it actually considered them).
This court has reviewed the record independently under Penson v. Ohio, 488
U.S. 75, 80 (1988), and finds no nonfrivolous issues for appeal. The judgment is
affirmed.

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Allowing counsel to withdraw at this time would not be consistent with the
Eighth Circuit’s 1994 Amendment to Part V of the Plan to Implement The Criminal
Justice Act of 1964. Counsel’s motion to withdraw is denied without prejudice to
counsel refiling the motion upon fulfilling the duties set forth in the Amendment.
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