United States v. Gilberto Alatorre

In this direct criminal appeal, Gilberto Alatorre challenges the sentence imposed by the District Court1 after he pleaded guilty to conspiracy to distribute and possess with intent to distribute a mixture or substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(A)(viii), and 846; possessing with intent to distribute a'mixture or substance containing methamphetamine, in violation of 21 U.S.C. § 841(b)(1)(C); and a forfeiture count. His counsel has moved to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and has filed a brief raising three challenges to the District Court’s application of the Guidelines based on its factual findings, which we review for clear error. See United States v. Brown, 148 F.3d 1003, 1007 (8th Cir.1998) (standard ,of review), cert. denied, 525 U.S. 1169, 119 S.Ct. 1092, 143 L.Ed.2d 92 (1999).

First, Alatorre challenges the District Court’s drug-quantity determination. The government used numbers provided by Alatorre during a post-arrest interview to approximate the drug quantity. At sentencing, the interviewing drug agent testified as to Alatorre’s interview statements, and the District Court did not err in relying on this testimony, which supports the Court’s drug quantity finding. See United States v. Behler, 187 F.3d 772, 777 (8th Cir.1999) (district court’s assessment of credibility is “virtually unreviewable”); United States v. Milton, 153 F.3d 891, 898 (8th Cir.1998) (court may rely on drug-quantity estimate that has sufficient accuracy), cert. denied, 525 U.S. 1165, 119 S.Ct. 1082, 143 L.Ed.2d 83 (1999); U.S. Sentencing Guidelines Manual § 2D1.4, comment, (n. 12) (1995).

Second, Alatorre challenges the application of a weapon enhancement under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (1995). We conclude the District Court did not clearly err in finding that the government’s evidence showed Alatorre had at least constructively possessed a sawed-off shotgun found adjacent to a bedroom dresser containing drugs and a scale in a residence which he shared with others, and in which some of his personal effects were found. See Brown v. United States, 169 F.3d 531, 532 (8th Cir.1999) (government must show weapon was present and it was not clearly improbable that weapon had nexus with criminal activity); United States v. Payne, 81 F.3d 759, 762 (8th Cir.1996) (ownership of weapon or premises is not required under § 2Dl.l(b); individual need not be observed using weapon because actual or constructive possession is sufficient, and sufficient nexus is established if weapon was found in location where drugs were stored).

Third, he challenges the application of an aggravating-role enhancement under U.S. Sentencing Guidelines Manual § 3Bl.l(e) (1995). We conclude the District Court did not clearly err in crediting testimony that Alatorre had stated two persons worked for him in his drug business. See United States v. Garrison, 168 F.3d 1089, 1095-96 (8th Cir.1999) (enhancement applicable if defendant supervised even one other participant; enhancement applicable if defendant managed or supervised even one transaction).

In accordance with Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have reviewed the record for any nonfrivolous issues and have found none. We now grant counsel’s motion to withdraw.

Accordingly, we affirm.