Shirley Walker v. Arkansas Dept. of Correction

1The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1582
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Joel Aguirre, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 29, 2009
Filed: December 31, 2009
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Before BYE, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
Aguirre challenges the 235-month prison sentence the district court 1 imposed
after he pled guilty to conspiring to distribute and possess with intent to distribute 50
grams or more of a methamphetamine mixture that contained 5 grams or more of
actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846.
His counsel has moved to withdraw and has filed a brief under Anders v. California,
386 U.S. 738 (1967), arguing that the court erred in (1) applying a 2-level increase for
possessing a dangerous weapon pursuant to U.S.S.G. § 2D1.1(b)(1); (2) denying a

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minor-role reduction under U.S.S.G. § 3B1.2(b); (3) departing upward from a
Category V to a Category VI criminal history under U.S.S.G. § 4A1.3(a); and
(4) denying a downward departure or a variance based on Aguirre’s diminished
capacity. In his pro se supplemental brief, Aguirre echoes many of counsel’s
arguments and adds that his counsel was ineffective; he also moves for new appellate
counsel.
The foregoing arguments, which we address seriatim, fail for the following
reasons: (1) the court did not err in imposing the weapon enhancement based on
sentencing testimony from a government witness, see United States v. King, 518 F.3d
571, 575 (8th Cir. 2008) (witness credibility); United States v. Pizano, 421 F.3d 707,
732 (8th Cir. 2005) (standard of review and requirements for imposing weapon
enhancement); (2) the court did not err in denying a minor-role reduction based on
sentencing testimony that Aguirre negotiated drug prices, delivered drugs, and
weighed them, see United States v. Carpenter, 487 F.3d 623, 625-26 (8th Cir. 2007)
(standard of review); United States v. Cubillos, 474 F.3d 1114, 1120 (8th Cir. 2007)
(distribution of drugs that were object of conspiracy was more than sufficient to show
deep involvement in offense); (3) the court did not abuse its discretion in departing
upward in light of Aguirre’s extensive criminal history, see United States v. Gonzalez,
573 F.3d 600, 605-07 (8th Cir. 2009); (4) we do not review the discretionary denial
of Aguirre’s motion for a downward departure, see United States v. Utlaut, 497 F.3d
843, 845 (8th Cir. 2007); (5) the court sufficiently considered relevant sentencing
factors under 18 U.S.C. § 3553(a), and did not abuse its discretion in declining to vary
downward, see Gonzalez, 573 F.3d at 607; and (6) the ineffective-assistance argument
is not properly raised in this direct criminal appeal, see United States v. Ramirez-
Hernandez, 449 F.3d 824, 826-27 (8th Cir. 2006).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we find no nonfrivolous issues. Accordingly, we deny Aguirre’s motion for
new counsel; we grant counsel’s motion to withdraw; and we affirm the district court.
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