United States Court of Appeals

For the Eighth Circuit

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No. 16-1893

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Julian Rivera

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Arkansas - Fayetteville

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 Submitted: January 19, 2017

Filed: January 23, 2017

[Unpublished]

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Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Julian Gambou Rivera pled guilty to sexually exploiting a minor and

possessing child pornography. He appeals the district court’s sentence, arguing it

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The Honorable Timothy L. Brooks, United States District Judge for the

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Western District of Arkansas.
was substantively unreasonable. Having jurisdiction under 28 U.S.C. § 1291, this

court affirms.

Rivera’s counsel has filed a brief under Anders v. California, 386 U.S. 738

(1967), and has moved to withdraw. In his supplemental brief, Rivera argues that his

plea agreement was unfair because the conduct underlying a dismissed charge was

used against him at sentencing; the court erred by improperly applying U.S.S.G. §

4B1.5(b)(1) and by failing to consider relevant mitigating factors; the prosecutor

defamed him by stating at sentencing that he would not change and had a high

likelihood of recidivism; and defense counsel was ineffective for failing to object to

the section 4B1.5 increase. 

This court finds that Rivera’s argument that his plea agreement was not

knowingly or voluntarily entered is not cognizable on direct appeal. See United

States v. Foy, 617 F.3d 1029, 1033-34 (8th Cir. 2010) (to extent defendant presented

argument to establish his plea was unknowing or involuntary, such claim would not

be cognizable on direct appeal where he failed to move in district court to withdraw

his guilty plea). The district court did not err in applying the 5-level increase. See

U.S.S.G. §§ 1B1.1, comment. (n.4B) (Guidelines Chapters Two, Three, and Four are

to be applied cumulatively and, in some cases, may be triggered by same conduct),

4B1.5(b)(1) (offense level shall be 5 plus offense level determined under Chapters

Two and Three); United States v. Pappas, 715 F.3d 225, 229 (8th Cir. 2013)

(double-counting is prohibited only if Guidelines at issue specifically forbid it);

United States v. Olson, 646 F.3d 569, 572 (8th Cir. 2011) (district court’s

construction and application of Guidelines are reviewed de novo). Rivera’s

ineffective-assistance claim fails, as counsel objected to the section 4B1.5 increase

at sentencing. See Weaver v. United States, 793 F.3d 857, 860 (8th Cir. 2015) (to

succeed on ineffective-assistance claim, movant must show counsel performed

deficiently and deficient performance prejudiced defense); United States v. Cook, 356

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F.3d 913, 919-20 (8th Cir. 2004) (ineffective-assistance claim may be addressed on

direct appeal where record is fully developed).

This court also finds that the sentence was not substantively unreasonable, as

the court imposed the within-Guidelines sentence after considering the 18 U.S.C.

§ 3553(a) factors. See United States v. Callaway, 762 F.3d 754, 760 (8th Cir. 2014)

(on appeal, within-Guidelines-range sentence may be presumed reasonable); United

States v. Miller, 57 F.3d 910, 917 (8th Cir. 2009) (under substantive-reasonableness

test, district court abusesits discretion if it fails to consider relevant § 3553(a) factor,

gives significant weight to improper or irrelevant factor, or commits clear error of

judgment in weighing factors). As to Rivera’s assertion that the government defamed

him, the government’s argument properly related to the sentencing factors, and a

criminal appeal is not the proper vehicle to raise a defamation claim. An independent

review of the record reveals no non-frivolous issues for appeal. See Penson v. Ohio,

488 U.S. 75 (1988).

The judgment is affirmed and counsel’s motion to withdraw is granted.

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