United States v. Rigoberto Martinez Mi

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, Diana E. Murphy and Lavenski R. Smith (UNPUBLISHED); Granting [4113021-2] motion to withdraw as counsel filed by Mr.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

United States Court of Appeals
For the Eighth Circuit
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No. 13-3602
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Rigoberto Martinez Miss
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: July 7, 2014
Filed: July 11, 2014
[Unpublished]
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Before LOKEN, MURPHY, and SMITH, Circuit Judges.
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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.

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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

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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.
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