Brian Ridenour v. Boehringer Ingelheim Corp.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-3770
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
Cristobal Arellano-Gutierrez, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 16, 2012
Filed: May 22, 2012
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Before MURPHY, ARNOLD, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Cristobal Arellano-Gutierrez appeals the statutory-minimum sentence the
district court 1 imposed after he pleaded guilty to possessing with intent to distribute
more than five kilograms of a mixture or substance containing cocaine, in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii)(II). On appeal, his counsel seeks leave to
withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967).
1The Honorable P. K. Holmes, III, Chief Judge, United States District Court for
the Western District of Arkansas.

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To the extent the Anders brief may be read as challenging the imposition of the
statutory-minimum sentence, we conclude the argument fails because the government
did not move for a sentence below the statutory minimum based on substantial
assistance, and nothing in the record indicates that Arellano-Gutierrez disclosed all of
the information he had concerning his offense. See United States v. Chacon, 330 F.3d
1065, 1066 (8th Cir. 2003) (only authority for court to depart below statutory
minimum sentence is in 18 U.S.C. § 3553(e) and (f), which apply only when
government files motion based on defendant’s substantial assistance or when
defendant qualifies under safety-valve provision); see also 18 U.S.C. § 3553(f) (in
case of offense under § 841, court shall impose sentence in accordance with
Guidelines without regard to statutory minimum sentence if court finds, inter alia, that
not later than time of sentencing hearing, defendant has truthfully provided to
government all information and evidence defendant has concerning offense or
offenses that were part of same course of conduct or of common scheme or plan).
Having reviewed the record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we
have found no nonfrivolous issues. Accordingly, we affirm, and we grant counsel
leave to withdraw, subject to counsel informing Arellano-Gutierrez about the
procedures for seeking rehearing and petitioning for a writ of certiorari.
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