1

The Honorable Linda R. Reade, United States District Judge for the Northern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 04-1734

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Misael Ortiz, *

* [UNPUBLISHED]

Appellant. *

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Submitted: May 25, 2005

Filed: June 2, 2005 

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Before MELLOY, McMILLIAN, and GRUENDER, Circuit Judges.

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PER CURIAM.

Misael Ortiz appeals the sentence the district court1

 imposed after a jury found

him guilty of conspiring to distribute and possess with intent to distribute 100

kilograms or more of marijuana, in violation of 21 U.S.C. § 846; and possessing with

intent to distribute, and aiding and abetting the possession with intent to distribute,

about 115 pounds of marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and

18 U.S.C. § 2. For the reasons that follow, we affirm.
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In a brief under Anders v. California, 386 U.S. 738 (1967), Ortiz’s counsel

challenges the denial of a minor-role adjustment, because Ortiz’s role was merely to

provide a temporary storage facility for the marijuana after it arrived by truck from

Chicago. Upon careful review, we conclude the district court’s finding was not

clearly erroneous. See United States v. Bustos-Torres, 396 F.3d 935, 947-48 (8th Cir.

2005) (standard of review; defendant has burden to prove role reduction is

warranted), petition for cert. filed, (Apr. 29, 2005) (No. 04-9968); United States v.

Belitz, 141 F.3d 815, 818-19 (8th Cir. 1998) (upholding finding that defendant’s

voluntary and knowing storage of substantial amount of drugs was sufficient to

preclude minor-role decrease).

We also grant Ortiz’s motion to file an amended counseled brief, and we have

considered his subsequent filing under Federal Rule of Appellate Procedure 28(j).

The district court imposed Ortiz’s sentence prior to the Supreme Court’s decision in

United States v. Booker, 125 S. Ct. 738 (2005). The sentence included an

obstruction-of-justice enhancement based on the court’s finding that Ortiz committed

perjury at trial, and Ortiz asserted no objection under the Sixth Amendment or

otherwise. While we now know it was error to apply the federal Sentencing

Guidelines in a mandatory fashion, Ortiz has not demonstrated “a ‘reasonable

probability,’ based on the appellate record as a whole, that but for the error he would

have received a more favorable sentence.” See United States v. Pirani, No. 03-2871,

2005 WL 1039976, at *4 (8th Cir. Apr. 29, 2005) (en banc) (plain-error review).

Ortiz does not contend his trial testimony does not support an obstruction-of-justice

adjustment, and Ortiz’s 97-month sentence is not illegal under the advisory

Guidelines regime mandated by Booker. See United States v. Finck, No. 03-3876,

2005 WL 1109474, at *3, *6 (8th Cir. May 11, 2005).

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

80 (1988), we have found no other nonfrivolous issues. Accordingly, we grant

counsel’s motion to withdraw, and we affirm.

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