1

The Honorable Howard F. Sachs, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-3511

___________

United States of America, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the

Gerardo Jimenez, * Western District of Missouri.

*

Appellant. * [UNPUBLISHED]

___________

 Submitted: December 20, 2002

 Filed: December 24, 2002

___________

Before WOLLMAN, FAGG, and MELLOY, Circuit Judges.

___________

PER CURIAM.

Gerardo Jimenez pleaded guilty to conspiring to possess with intent to

distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(B), and 846. The district court1 sentenced him to 87 months imprisonment and

5 years supervised release. On appeal, his counsel has moved to withdraw and filed

a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the court erred

in denying Jimenez a 3-level acceptance-of-responsibility reduction. In his pro se
-2-

submissions Jimenez adds that under the plea agreement he was entitled to an

acceptance reduction and the government thus breached the agreement, and that the

drug-quantity determination was unreliable and erroneous. We affirm.

The district court did not clearly err in denying an acceptance-of-responsibility

reduction, see United States v. Ervasti, 201 F.3d 1029, 1043 (8th Cir. 2000) (standard

of review), given Jimenez’s statements during his presentence interview essentially

denying some of the facts underlying his offense, see U.S.S.G. § 3E.1.1 comment.

(n.3) (2000) (evidence of timely acceptance may be outweighed by conduct of

defendant that is inconsistent with such acceptance; defendant who enters guilty plea

is not entitled to acceptance adjustment as matter of right).

Jimenez’s pro se arguments regarding drug quantity and breach of his plea

agreement are raised for the first time of appeal, and we find there was no plain error.

See United States v. Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (en banc) (plainerror standard of review applies when issues are not raised in district court). First, the

plea agreement specifically stated that any sentencing stipulations, including the

anticipated acceptance-of-responsibility reduction, were not binding on the court.

Second, at sentencing Jimenez stipulated to the drug quantity attributable to him, see

United States v. Nguyen, 46 F.3d 781, 783 (8th Cir. 1995) (defendant who voluntarily

exposes himself to specific sentence may not challenge that punishment on appeal);

and in any event, the drug-quantity determination was based on cocaine--laboratorytested and weighed--that had been seized incident to a codefendant’s arrest, see

United States v. Moss, 138 F.3d 742, 745 (8th Cir. 1998) (drug-quantity

determination reviewed for clear error).

Finally, to the extent Jimenez intended to bring a claim of ineffective

assistance, this is not properly before us. See United States v. Clayton, 210 F.3d 841,

845 n.4 (8th Cir. 2000).
-3-

Having reviewed the record independently pursuant to Penson v. Ohio, 488

U.S. 75 (1988), we find no nonfrivolous issues. Accordingly, we affirm, and we grant

counsel’s motion to withdraw.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.