Nery G. Ventura v. Dept. of Homeland

1The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-1297
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Isidro Terriquez Chavez, *
also known as Isidro Terriquez, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: December 1, 2005
Filed: December 6, 2005
___________
Before BYE, McMILLIAN, and RILEY, Circuit Judges.
___________
PER CURIAM.
Isidro Terriquez Chavez (Chavez) pled guilty to conspiring to distribute and
possess with intent to distribute 500 grams or more of methamphetamine mixture, in
violation of 21 U.S.C. § 846. The district court 1 sentenced him to 70 months’
imprisonment and 5 years of supervised release. On appeal, counsel has moved to
withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967). In his pro

-- 1 of 2 --

-2-
se supplemental brief, Chavez argues that the district court violated United States v.
Booker, 125 S. Ct. 738 (2005). We reject that argument for the following reasons.
Chavez failed to raise any objection below, limiting our review to plain error.
Applying the test we adopted in United States v. Pirani, 406 F.3d 543, 550-53 (8th
Cir.) (en banc), cert. denied, 126 S. Ct. 266 (2005), we conclude Chavez cannot satisfy
his burden to show the error of sentencing under a mandatory system affected his
substantial rights. Although Chavez received a sentence at the bottom of the
Guidelines range, we have held this is not by itself a sufficient showing, see id. at 553,
and the district court gave no indication at sentencing or elsewhere in the record it
would have imposed a more favorable sentence under advisory Guidelines, see United
States v. Wunder, 414 F.3d 1019, 1023 (8th Cir. 2005).
Having reviewed the record independently pursuant to Penson v. Ohio, 488
U.S. 75 (1988), we conclude there are no nonfrivolous issues for appeal. Accordingly,
we affirm the judgment of the district court, and we grant counsel’s motion to
withdraw. We deny Chavez’s pending motion to compel.
______________________________

-- 2 of 2 --