United States v. Michael Dale

1The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3170
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Omar Villareal, * [UNPUBLISHED]
*
Appellant. *
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Submitted: July 5, 2010
Filed: July 7, 2010
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Before LOKEN, BYE, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Omar Villareal appeals his drug conviction and sentence entered by the district
court 1 following a jury trial. His counsel has moved to withdraw, and has filed a brief
under Anders v. California, 386 U.S. 738 (1967), challenging the sufficiency of the
evidence to support the jury’s verdict, the district court’s drug quantity finding, and
Villareal’s 210-month sentence. In a pro se supplemental brief, Villareal argues that
drug quantity was not proven to a jury, in violation of United States v. Booker, 543
U.S. 220 (2005), and that he did not have an opportunity to confront witnesses.

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We reject these arguments seriatim: (1) the evidence was sufficient to convict
Villareal of conspiring to distribute 5 kilograms or more of cocaine based on the
testimony of his co-conspirators and the investigating drug agents, see United States
v. Hernandez, 569 F.3d 893, 896 (8th Cir. 2009) (government must prove there was
agreement to distribute drugs, and defendant knew of conspiracy and intentionally
joined it); (2) based on the trial testimony, a preponderance of the evidence supports
the district court’s drug quantity finding, see United v. Alexander, 408 F.3d 1003,
1009 (8th Cir. 2005) (district court’s drug quantity determination must be found by
preponderance of evidence); (3) the district court was permitted to determine drug
quantity because it applied the Guidelines in an advisory manner, see United States
v. Brave Thunder, 445 F.3d 1062, 1065 (8th Cir. 2006); (4) nothing in the record
suggests that Villareal was denied the opportunity to confront witnesses; and (5) his
210-month sentence, representing a downward variance from the 235-293 month
Guidelines range, was not unreasonable, see United States v. Lazarski, 560 F.3d 731,
733 (8th Cir. 2009).
Further, after reviewing the record independently under Penson v. Ohio, 488
U.S. 75 (1988), we have found no nonfrivolous issues for appeal. Accordingly, we
grant counsel’s motion to withdraw, and we affirm the district court’s judgment.
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