Robert Mems v. City of St. Paul

1 The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3468
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Juan Francisco Otero-Figueroa, also * District of Nebraska.
known as Chuco, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 2, 2003
Filed: April 3, 2003
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Before LOKEN, Chief Judge, BOWMAN and WOLLMAN, Circuit Judges.
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PER CURIAM.
Juan Francisco Otero-Figueroa pleaded guilty to conspiring to distribute and
possess with intent to distribute 500 grams or more of a mixture or substance
containing methamphetamine, a violation of 21 U.S.C. § 846 (2000). The District
Court 1 sentenced him to 210 months imprisonment and 5 years supervised release.
Counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S.

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738 (1967), arguing the District Court did not personally advise Otero-Figueroa of
the nature of the charge and the minimum and maximum penalties that could be
imposed upon conviction, as required by Federal Rule of Criminal Procedure 11, but
instead delegated that portion of the colloquy to the prosecutor.
Otero-Figueroa did not object to this deviation from Rule 11, and there is no
indication that his substantial rights were affected. See United States v. Vonn, 535
U.S. 55, —, 122 S. Ct. 1043, 1046 (2002) (defendant who allows Rule 11 error to
pass without objection in trial court must satisfy plain-error rule, i.e., that claimed
plain error affected defendant’s substantial rights). As relevant, the indictment and
the plea agreement set forth the charge, and the plea agreement and guilty-plea
petition set forth the possible penalties; at the guilty-plea hearing, the prosecutor
recited the charge and possible penalties and described the plea agreement, and
Otero-Figueroa affirmed he understood them; the prosecutor set forth the factual basis
for the plea and Otero-Figueroa stated in his own words why he was guilty; and the
District Court sentenced Otero-Figueroa in accordance with the statutory penalties
and applicable Sentencing Guidelines. See United States v. Prado, 204 F.3d 843,
845-46 (8th Cir.), cert. denied, 531 U.S. 1042 (2000).
Having conducted an independent review under Penson v. Ohio, 488 U.S. 75
(1988), we find no nonfrivolous issues. Accordingly, we affirm, and we grant
counsel’s motion to withdraw.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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