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 The Honorable Joan N. Ericksen, United States District Judge for the District

of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-2191

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Jesus Contreras Arellano, also known *

as Fabian Rodolpho Noreaga, Jr., * [UNPUBLISHED]

*

Appellant. *

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Submitted: October 6, 2005

Filed: October 12, 2005 

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Before BYE, MELLOY, and GRUENDER, Circuit Judges.

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PER CURIAM.

Jesus Contreras Arellano unconditionally pleaded guilty to conspiring to

distribute and possess with intent to distribute 500 grams or more of

methamphetamine, in violation of 21 U.S.C. § 846, and the district court1

 sentenced

him to 135 months in prison and 5 years supervised release. On appeal, counsel

briefed the case under Anders v. California, 386 U.S. 738 (1967), and moved to

withdraw. Arellano was granted leave to file a pro se supplemental brief, but he did
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not do so. We address below the two arguments made by counsel, and we affirm

Arellano’s conviction and sentence.

First, we conclude that the district court did not clearly err in finding it was not

clearly improbable that Arellano possessed one or more firearms in connection with

the methamphetamine conspiracy, making him ineligible for a sentence below the

statutory minimum under the safety-valve provision and requiring an enhancement

to his base offense level under U.S.S.G. § 2D1.1(b)(1). See U.S.S.G. § 2D1.1(b)(1),

comment. (n.3) (clear-improbability standard for enhancement); United States v.

Moore, 184 F.3d 790, 794-95 (8th Cir. 1999) (applying § 2D1.1(b)(1)’s clearimprobability standard when evaluating safety-valve eligibility; clear-error standard

of review), cert. denied, 528 U.S. 1161 (2000). In the apartment Arellano shared with

a codefendant, at least one loaded firearm was readily accessible to Arellano for at

least two days during the conspiracy period, see United States v. Savage, 414 F.3d

964, 967 (8th Cir. 2005) (district court did not clearly err where firearm was readily

accessible to defendant and would be available to him in case of dispute during drug

transaction), and that firearm was located in the same unlocked cabinet as

methamphetamine, see United States v. Cave, 293 F.3d 1077, 1079 (8th Cir. 2002)

(evidence that weapon was found in same location as drugs or drug paraphernalia

usually suffices).

Second, although the district court committed a Sixth Amendment violation by

applying the section 2D1.1(b)(1) enhancement in a mandatory Guidelines regime

based on judge-found facts, we conclude that Arellano is not entitled to relief for this

unobjected-to error under the third prong of the plain-error test we adopted in United

States v. Pirani, 406 F.3d 543, 550-53 (8th Cir. 2005) (en banc), cert. denied, No. 05-

5547 (U.S. Oct. 3, 2005). We have scrutinized the district court’s comments at

sentencing, and Arellano cannot show a reasonable probability that he would receive

a more favorable sentence under advisory Guidelines. See United States v. Wunder,

414 F.3d 1019, 1023 (8th Cir. 2005).
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Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75

(1988), we conclude that there are no nonfrivolous issues. Accordingly, we affirm

the judgment of the district court, and we grant counsel’s motion to withdraw.

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