United States v. Gabriel A. Nabejar

1The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District
Court for the Western District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3033
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Raul Madraso, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 17, 2007
Filed: December 21, 2007
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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Raul Madraso pleaded guilty to possessing more than 50 grams of crack with
intent to distribute; his 1995 felony drug conviction increased his mandatory
minimum prison term to 20 years. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 851. The
district court 1 sentenced Madraso to 240 months in prison and 10 years of supervised
release. On appeal, his counsel has moved to withdraw and filed a brief under Anders
v. California, 386 U.S. 738 (1967). For the following reasons, we affirm.

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First, Madraso’s sentence is not unreasonable: 240 months was the statutory
minimum, and the district court had no authority to depart or vary downward because
the government did not move for a lower sentence based on substantial assistance and
Madraso did not qualify for safety-valve relief. See 18 U.S.C. § 3553(e), (f); United
States v. Gregg, 451 F.3d 930, 937 (8th Cir. 2006); United States v. Chacon, 330 F.3d
1065, 1066 (8th Cir. 2003). Second, Madraso’s prior felony conviction was properly
used to enhance his sentence. See United States v. Thomas, 930 F.2d 12, 14 (8th Cir.
1991) (no Double Jeopardy Clause violation). Third, it was within the government’s
discretion to file the sentence-enhancing section 851 information, absent any
allegation that the decision was based on an improper factor. See United States v.
LaBonte, 520 U.S. 751, 761-62 (1997). Finally, after reviewing the record
independently under Penson v. Ohio, 488 U.S. 75, 80 (1988), we find no nonfrivolous
issues.
Accordingly, we grant counsel leave to withdraw, and we affirm the judgment.
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