United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-1421

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of Nebraska.

Jose G. Valdivia, *

* [UNPUBLISHED]

Appellant. *

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Submitted: October 6, 2009

Filed: October 13, 2009

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Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Jose G. Valdivia pleaded guilty to possessing with intent to deliver more than

5 grams of actual methamphetamine, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(B)(viii); to possessing a firearm in furtherance of a drug-trafficking crime, in

violation of 18 U.S.C. § 924(c); and to three forfeiture counts. The district court1

imposed consecutive prison sentences of 78 months on the drug count and 60 months

on the gun count, to be followed by concurrent 5-year terms of supervised release. On

appeal, counsel has moved to withdraw, and in a brief filed under Anders v.

1

The Honorable Laurie Smith Camp, United States District Judge for the

District of Nebraska. 
California, 386 U.S. 738 (1967), he argues that the district court’s sentence is

excessive and unreasonable. In a pro se motion, Valdivia seeks to compel his counsel

to argue that the district court erred in finding a sufficient factual basis for his guilty

plea to the gun conviction. For the reasons discussed below, we affirm. 

Valdivia pleaded guilty pursuant to a written plea agreement that stipulated to

the total offense level for the drug offense and to a 5-year consecutive sentence for the

gun offense. The district court followed those stipulations, and after granting

Valdivia’s motion to depart to a lower criminal history, sentenced him to the low end

of the recommended Guidelines range of imprisonment on the drug charge and the

statutory 5-year consecutive sentence on the gun charge. In these circumstances,

Valdivia has not rebutted the presumption that his sentence is reasonable. See United

States v. Dembry, 535 F.3d 798, 801 (8th Cir. 2008) (appellate court presumes prison

sentence within advisory Guidelines range is reasonable), cert. denied, 129 S. Ct. 958

(2009); United States v. Mickelson, 433 F.3d 1050, 1051, 1055-56 (8th Cir. 2006)

(defendant who explicitly and voluntarily exposes himself to specific sentence may

not challenge that punishment on appeal; defendant’s stipulation to applicable

Guidelines range and counsel’s request for sentence within that range may be

interpreted as acknowledgment that any sentence within that range would have been

reasonable). As to Valdivia’s motion to compel counsel to challenge the factual basis

for his plea to the gun charge, we conclude that any such argument by counsel would

fail. See United States v. Williams, 512 F.3d 1040, 1044 (8th Cir.), cert. denied, 128

S. Ct. 2918 (2008).

Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,

80 (1988), we have found no nonfrivolous issues. Accordingly, we affirm. We deny

Valdivia’s appellate motion, and we grant counsel’s motion to withdraw, subject to

counsel advising Valdivia about procedures for seeking rehearing and filing a petition

for writ of certiorari. 

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