United States v. Rigoberto Martinez Mi


PER CURIAM OPINION FILED - THE COURT: James B. Loken, Diana E. Murphy and Lavenski R. Smith (UNPUBLISHED); Granting [4113021-2] motion to withdraw as counsel filed by Mr. John P. Messina. [4174094] [13-3602]

Download PDF
United States Court of Appeals For the Eighth Circuit ___________________________ No. 13-3602 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Rigoberto Martinez Miss lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Southern District of Iowa - Des Moines ____________ Submitted: July 7, 2014 Filed: July 11, 2014 [Unpublished] ____________ Before LOKEN, MURPHY, and SMITH, Circuit Judges. ____________ PER CURIAM. Rigoberto Martinez Miss appeals after he pleaded guilty to a drug offense and the district court1 sentenced him to 168 months in prison. On appeal, Martinez Miss’s 1 The Honorable James E. Gritzner, Chief Judge, United States District Court for the Southern District of Iowa. Appellate Case: 13-3602 Page: 1 Date Filed: 07/11/2014 Entry ID: 4174094 counsel has moved for leave to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the court erred by denying Martinez Miss safety-valve relief and by imposing an unreasonable sentence. In a pro se supplemental brief, Martinez Miss argues that the court violated his constitutional rights by relying on testimony about statements he made through a translator, and counsel is failing to act as an advocate on appeal, and to provide effective assistance. We conclude that counsel’s thorough brief in support of reversal complies with counsel’s duty under Anders to act as an advocate, see Penson v. Ohio, 488 U.S. 75, 82 (1988) (discussing purpose of Anders brief), and we defer any other ineffectiveassistance claims to collateral proceedings, see United States v. Hubbard, 638 F.3d 866, 869 (8th Cir. 2011) (ineffective-assistance claims are generally best litigated in collateral proceedings). As to the remaining issues, the district court did not clearly err in finding that Martinez Miss failed to disclose to the government all of the information he had about his offense, and thus did not meet the criteria for safety-valve relief. See 18 U.S.C. § 3553(f)(1)-(5) (court shall disregard statutory minimum if, inter alia, defendant has truthfully provided to government all information and evidence he has concerning instant offense); U.S.S.G. § 2D1.1(b)(16) (2-level Guidelines reduction is awarded if defendant meets safety-valve criteria); United States v. Hinojosa, 728 F.3d 787, 790 (8th Cir. 2013) (standard of review). The court’s finding is supported by an officer’s sentencing testimony, evidence of Martinez Miss’s inconsistent statements, and the large quantity of drugs he transported. See United States v. Guerra-Cabrera, 477 F.3d 1021, 1025 (8th Cir. 2007) (court may hold defendant responsible for disclosing identities and participation of other individuals in offense if defendant could reasonably be expected to have such information); United States v. Soto, 448 F.3d 993, 995-96 (8th Cir. 2006) (defendant has burden to prove he qualifies for safetyvalve reduction). As to Martinez Miss’s within-Guidelines-range sentence, we will -2- Appellate Case: 13-3602 Page: 2 Date Filed: 07/11/2014 Entry ID: 4174094 apply a presumption of reasonableness. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). Finally, we decline to consider the constitutional arguments raised for the first time on appeal, see United States v. Pugh, 151 F.3d 799, 800 (8th Cir. 1998) (per curiam), and having independently reviewed the record under Penson, 488 U.S. at 80, we have found no nonfrivolous issues for review. Accordingly, we affirm the judgment of the district court, and we grant counsel’s motion to withdraw, subject to counsel informing Martinez Miss about procedures for seeking rehearing or filing a petition for certiorari. ______________________________ -3- Appellate Case: 13-3602 Page: 3 Date Filed: 07/11/2014 Entry ID: 4174094

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?