United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 02-4012

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska

Apolonio Moreno, *

* [UNPUBLISHED]

Appellant. *

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Submitted: March 5, 2004

Filed: March 24, 2004

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Before BYE, McMILLIAN, and RILEY, Circuit Judges.

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PER CURIAM.

Apolonio Moreno appeals from the final judgment entered in the District Court

for the District of Nebraska after he was resentenced. A jury had convicted him on

the following counts: possession with intent to distribute marijuana (Count 1),

amphetamine (Count 2), and cocaine (Count 3), in violation of 21 U.S.C. § 841(a)(1)

and 18 U.S.C. § 2; criminal forfeiture, in violation of 21 U.S.C. § 853 (Count 4); and

conspiracy to distribute cocaine, methamphetamine, amphetamine, and marijuana, in

violation of 21 U.S.C. § 846 and 18 U.S.C. § 2 (Count 5). The district court imposed

a single sentence of 216 months imprisonment and 3 years supervised release.

Counsel has moved to withdraw on appeal pursuant to Anders v. California, 386 U.S.
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738 (1967), and has filed a brief challenging the drug quantity determination, upward

adjustments for firearm possession and obstruction of justice, and the denial of a

downward departure motion. Moreno has filed a pro se supplemental brief,

contending counsel rendered ineffective assistance at resentencing. For the reasons

discussed below, we grant counsel’s motion to withdraw, and we affirm the judgment

of the district court with modification.

We reject the arguments raised in the Anders brief. First, we conclude the

resentencing court did not clearly err in converting all the drug types to their

marijuana equivalencies and finding Moreno was responsible for a total of 2,007.84

kilograms of marijuana. The quantity finding was based on witness testimony and

evidence of drugs seized from or near properties Moreno owned. See United States

v. Davis, 357 F.3d 726, 729 (8th Cir. 2004) (finding no clear error in district court’s

drug quantity calculations where they were based on witness testimony believed by

court to be credible); United States v. Kuenstler, 325 F.3d 1015, 1022 (8th Cir. 2003)

(common practice of proving drug quantity is by evidence of actual quantities seized),

cert. denied, 124 S. Ct. 1037 (2004); U.S.S.G. § 2D1.1, comment. (n.10) (Nov. 1995)

(to obtain single offense level for different controlled substances, convert each drug

to its marijuana equivalent, add quantities, and look up total in Drug Quantity Table

to obtain combined offense level). Second, we need not consider the firearm

enhancement issue, because Moreno did not raise it in his first appeal, see United

States v. Kress, 58 F.3d 370, 373 (8th Cir. 1995) (where party could have raised issue

in prior appeal but did not, court later hearing same case need not consider matter);

and we find Moreno is precluded from challenging the obstruction of justice

enhancement, because he challenged it in his earlier appeal and we affirmed the

enhancement, see United States v. Logan, 333 F.3d 876, 877-78 (8th Cir.) (per

curiam) (in appeal from resentencing, sentencing-related arguments were precluded

because they were previously raised or were essentially based on arguments resolved

in first appeal), cert. denied, 124 S. Ct. 490, 970 (2003). Third, the district court’s

denial of Moreno’s departure motion is unreviewable, because the court recognized
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its authority to depart but declined to do so. See United States v. Young, 315 F.3d

911, 914 (8th Cir.) (district court’s discretionary decision not to grant U.S.S.G.

§ 5K2.0 departure is unreviewable absent allegation that district court had

unconstitutional motive or erroneously determined that it lacked authority to depart),

cert. denied, 123 S. Ct. 2108 (2003).

We decline to address the ineffective assistance of counsel issue raised in

Moreno’s supplemental brief, because the record is not developed on this claim. See

Young, 315 F.3d at 914 (except where miscarriage of justice would obviously result

or outcome would be inconsistent with substantial justice, ineffective assistance of

counsel issues are more appropriately raised in collateral proceedings because they

normally involve facts outside original record). 

We have reviewed the record pertaining to resentencing under Penson v. Ohio,

488 U.S. 75, 80 (1988), and we conclude that the district court erred in sentencing

Moreno to a total of 216 months, instead of pronouncing separate sentences for each

count. See U.S.S.G. § 5G1.2, comment. (Nov. 1995) (in multiple-count case, total

punishment--determined by adjusted combined offense level--is to be imposed

concurrently on each count to extent allowed by statutory maximums). Because the

resentencing court capped the marijuana quantity at 49.9 kilograms for Count 1,

Moreno could not have been sentenced to more than 60 months in prison and 2 years

supervised release on this count. See 21 U.S.C. § 841(b)(1)(D) (statutory maximum);

U.S.S.G. § 5G1.1(a) (Nov. 1995) (where statutorily authorized maximum sentence

is less than minimum of applicable Guidelines range, statutorily authorized maximum

sentence shall be Guidelines sentence). Although Moreno did not object to the

imposition of a single 216-month prison term, he could be prejudiced by it in the

future if, for example, he were to succeed in having the sentences on Counts 2, 3, and

5 vacated. Cf. United States v. Maynie, 257 F.3d 908, 918-19 (8th Cir. 2001)

(unobjected-to issue is reviewed for plain error, which exists where correction of

error would result in reduced sentence), cert. denied, 534 U.S. 1151, 535 U.S. 944
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(2002). We therefore modify the sentence to concurrent terms of 60 months

imprisonment and 2 years supervised release on Count 1, and 216 months

imprisonment and 3 years supervised release on each of Counts 2, 3, and 5. See 28

U.S.C. § 2106 (appellate court may modify any judgment of court brought before it

for review); cf. United States v. Ashland, Inc., 356 F.3d 871, 875 (8th Cir. 2004)

(excising objectionable conditions of probation and letting sentence stand as

modified, instead of remanding). 

We have found no other non-frivolous issues. 

Accordingly, we grant counsel’s motion to withdraw, and we affirm the

judgment of the district court as modified. 

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