The Honorable Thomas M. Shanahan, United States District Judge for the

1

District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-1034

___________

United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * District of Nebraska.

Juan Carlos Neri, *

 * [UNPUBLISHED]

Appellant. *

___________

 Submitted: May 29, 1998

 Filed: June 8, 1998 

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Before WOLLMAN, BEAM, and HANSEN, Circuit Judges.

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PER CURIAM.

Juan Carlos Neri pleaded guilty to conspiring to distribute methamphetamine and

cocaine, and to possess them with intent to distribute, in violation of 21 U.S.C. § 846.

Departing upon the government&s motion to a point below the applicable Guidelines

range and the statutory mandatory minimum sentence, the district court sentenced Neri 1

to 84 months imprisonment and five years supervised release. This appeal followed.

After appellate counsel moved to withdraw pursuant to Anders v. California, 386 U.S.
-2-

738 (1967), we granted Neri permission to file a pro se supplemental brief, but he has

not done so. We affirm.

In his Anders brief, counsel raises a challenge to the district court&s drug-quantity

finding. Normally we review a district court&s factual findings at sentencing for clear

error, and we review de novo the application of the Guidelines to the facts. See United

States v. Darden, 70 F.3d 1507, 1544 (8th Cir. 1995), cert. denied, 517 U.S. 1149 and

cert. denied, 518 U.S. 1026 (1996). The Anders-brief argument, however, suffers from

a number of deficiencies. First, the court&s drug-quantity finding is consistent with the

parties& plea-agreement stipulation that Neri was to be held responsible for between

three and ten kilograms of methamphetamine, for a base offense level of 34. See

United States v. Early, 77 F.3d 242, 244 (8th Cir. 1996) (per curiam) (defendant cannot

challenge Guidelines application on appeal where defendant&s plea agreement expressly

sets forth base offense level and type of controlled substance). 

Second, the issue raised here is reviewable only to the extent that Neri is

challenging a quantity of drugs, which, when deducted from the amount the court

attributed to his offense, would produce a Guidelines sentencing range below the

departure sentence Neri received. See United States v. Baker, 64 F.3d 439, 441 (8th

Cir. 1995). Finally, even assuming the argument is not foreclosed and Neri&s sentence

is reviewable, Neri did not challenge his base offense level at sentencing, thus limiting

us to reviewing the calculation of his base offense level for plain error, which we do not

find. See U.S. Sentencing Guidelines Manual § 1B1.3(a)(1)(A), (B) (1997)

(defendant&s base offense level is calculated based on acts defendant commits, and also

on all reasonably foreseeable acts and omissions of others in furtherance of jointly

undertaken criminal activity); United States v. Montanye, 996 F.2d 190, 192 (8th Cir.

1993) (en banc) (explaining plain-error review).
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Upon review of the record in accordance with Penson v. Ohio, 488 U.S. 75, 80

(1988), we find no nonfrivolous issues. Accordingly, we affirm the judgment of the

district court.

A true copy.

Attest:

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