1

The Honorable Ronald E. Longstaff, United States District Judge for the

Southern District of Iowa. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-3786

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Daniel Pena Ramirez, *

* [UNPUBLISHED]

Appellant. *

___________

Submitted: October 22, 2010

Filed: October 28, 2010

___________

Before LOKEN, MURPHY, and BENTON, Circuit Judges.

___________

PER CURIAM.

After Daniel Pena-Ramirez (Ramirez) pled guilty to drug conspiracy and

weapon charges, the district court1

 imposed the mandatory minimum of 120 months

on the drug conspiracy count, see 21 U.S.C. § 841(b)(1)(A), and the mandatory

minimum of 7 years on the firearm count after concluding that Ramirez brandished

the firearm during the underlying drug trafficking offense, see18 U.S.C.

§ 924(c)(1)(A). On appeal, counsel moved to withdraw and filed a brief under Anders

v. California, 386 U.S. 738 (1967). Ramirez filed a pro se supplemental brief.
2

We are cognizant of the Supreme Court’s recent grant of certiorari in Abbott

v. United States, 130 S. Ct. 1284 (2010), and Gould v. United States, 130 S. Ct. 1283

(2010) (consolidated with Abbott), to determine whether the “any other provision”

language of section 924(c)(1)(A) includes the underlying drug-trafficking offense. 

-2-

The arguments raised in the Anders brief fail. Counsel argues that Ramirez’s

guilty plea was involuntary, but this claim is not cognizable here because Ramirez did

not attempt to withdraw his guilty plea below. See United States v. VillarealAmarillas, 454 F.3d 925, 932 (8th Cir. 2006). Next, we reject counsel’s argument that

the government’s refusal to file a substantial-assistance departure motion violated due

process: nothing in the record supports such an argument and Ramirez did not even

attempt to compel the government to file a departure motion. Third, we reject

counsel’s challenge to the district court’s finding that Ramirez brandished the

handgun at issue, because the government provided evidence at sentencing that

Ramirez displayed a handgun to an undercover officer to whom Ramirez was going

to front methamphetamine to ensure that the officer would pay his drug debt. See 18

U.S.C. § 924(c)(4) (“brandish” means to display all or part of firearm in order to

intimidate person).

Finally, circuit precedent forecloses Ramirez’s argument that the plain language

of section 924(c)(1) forbids the imposition of its mandatory minimum sentence when

a defendant is subject to another larger mandatory minimum sentence. See United

States v. Cisneros-Gutierrez, 598 F.3d 997, 1007 (8th Cir. 2010); United States v.

Alaniz, 235 F.3d 386, 389 (8th Cir. 2000).2

 

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

(1988), and found no nonfrivolous issues for appeal. Accordingly, we affirm the

judgment of the district court. We grant counsel’s motion to withdraw, subject to

counsel informing Ramirez about procedures for seeking rehearing or filing a petition

for certiorari.

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