United States v. Leonardo Vargas

U.S. Court of Appeals for the Eighth Circuit
United States v. Leonardo Vargas, 88 F. App'x 970 (8th Cir. 2004)

United States v. Leonardo Vargas

Opinion

PER CURIAM.

Leonardo Vargas appeals the sentence the district court 1 imposed after he plead *971 ed guilty to distributing, within 1,000 feet of a high school, 500 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. §§ 846 and 860(a); and possessing firearms during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Vargas’s counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that the district court should not have sentenced Vargas before verifying that Vargas had personally read the presentence report (PSR), see Fed.R.Crim.P. 32(i)(l)(A), and that the government should have moved the court to depart downward from the Sentencing Guidelines range, see U.S.S.G. § 5K1.1, and below the statutory minimum sentence, see 18 U.S.C. § 3553(e).

We conclude the district court fully complied with Rule 32 because the court asked Vargas’s counsel whether he and Vargas “had a full, fair, and complete opportunity” to discuss the PSR, and counsel responded that the original PSR had been mailed to Vargas more than a month before the hearing, and that earlier in the day he and Vargas had discussed changes made to the PSR. See United States v. Osborne, 291 F.3d 908, 910 (6th Cir. 2002) (court need only “somehow” determine that defendant and counsel have had opportunity to read and discuss PSR). As to the lack of any substantial-assistance motions, Vargas has not shown—particularly since there was no plea agreement in this case—that the government ever promised a departure motion or that the government’s refusal to file one was based on an unconstitutional motive. See Wade v. United States, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992).

Upon our independent review under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw and we affirm the judgment of the district court.

1

. The Honorable Mark W. Bennett, Chief Judge, United States District Court for the Northern District of Iowa.

Reference

Full Case Name
UNITED STATES of America, Appellee, v. Leonardo VARGAS, Also Known as Leo, Appellant
Status
Unpublished