United States v. Fernando Canales-Mendoza


PER CURIAM OPINION FILED - THE COURT: James B. Loken, Kermit E. Bye and Jane Kelly (UNPUBLISHED); Granting [4304621-2] motion to withdraw as counsel filed by Mr. Jose Alfaro. [4383210] [15-1951]

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 15-1951 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Fernando Canales-Mendoza lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Western District of Arkansas - Harrison ____________ Submitted: March 23, 2016 Filed: March 30, 2016 [Unpublished] ____________ Before LOKEN, BYE, and KELLY, Circuit Judges. ____________ PER CURIAM. A jury found Fernando Canales-Mendoza (Canales) guilty of distributing over 5 grams of actual methamphetamine, possessing with intent to distribute over 50 grams of actual methamphetamine, and conspiring to distribute methamphetamine. Appellate Case: 15-1951 Page: 1 Date Filed: 03/30/2016 Entry ID: 4383210 The district court1 thereafter imposed concurrent sentences totaling 120 months in prison--the mandatory statutory minimum, which represented a one-month downward variance from the Guidelines range--plus five years of supervised release. On appeal, in a brief filed under Anders v. California, 386 U.S. 738 (1967), Canales’s counsel challenges the sufficiency of the evidence to support the convictions, and the substantive reasonableness of the sentence. In a pro se supplemental brief, Canales argues he was eligible for safety-valve relief. For the reasons that follow, we affirm. Following careful review, we conclude that the evidence establishing three undercover buys of methamphetamine, with resale quantities involved, supported Canales’s convictions. See United States v. Vore, 743 F.3d 1175, 1180-81 (8th Cir. 2014) (standard of review); United States v. Peeler, 779 F.3d 773, 776 (8th Cir. 2015) (conspiracy); United States v. Tomberlin, 130 F.3d 1318, 1319 (8th Cir. 1997) (distribution). As to sentencing issues, Canales did not meet his burden to prove that he qualified for safety-valve relief, given representations by both the government and defense counsel that Canales did not engage in the necessary proffer, see 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a); United States v. O’Dell, 204 F.3d 829, 838 (8th Cir. 2000); and the reasonableness challenge to his statutory minimum sentence fails, see United States v. Vieth, 397 F.3d 615, 620 (8th Cir. 2005). After independent review under Penson v. Ohio, 488 U.S. 75 (1988), we find no nonfrivolous issue. Accordingly, the judgment is affirmed, and counsel’s motion to withdraw is granted. ______________________________ 1 The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas, now retired. -2- Appellate Case: 15-1951 Page: 2 Date Filed: 03/30/2016 Entry ID: 4383210

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