United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-2392

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa

Fernando Arias-Gonzales, *

* [UNPUBLISHED]

Appellant. *

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Submitted: November 3, 2009

Filed: December 14, 2009 

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Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Fernando Arias-Gonzales appeals the district court’s1

 judgment entered upon

a jury verdict finding him guilty of conspiring to distribute 500 grams or more of a

mixture containing a detectable amount of methamphetamine, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. In a brief filed under Anders v. California,

386 U.S. 738 (1967), counsel argues the sentence imposed, 300 months in prison and

5 years of supervised release, is too harsh. In a pro se supplemental brief, AriasGonzales argues (1) that the evidence was insufficient to establish a conspiracy; (2)

1

The Honorable Donald E. O’Brien, United States District Judge for the

Northern District of Iowa.
that the witnesses who accepted plea deals in exchange for their testimony should

have been disqualified; (3) that a clear-and-convincing standard of proof should have

been used for sentencing enhancements; and (4) that the government witnesses were

so unreliable that use of their testimony to support the drug-quantity finding for

sentencing purposes violated due process. For the reasons that follow, we affirm.

The trial testimony of two law enforcement officials and ten cooperating

witnesses, whose credibility was for the jury to decide, established that from 2001 to

2006, Arias-Gonzales, or a someone working at his direction, repeatedly transported

as much as nine or ten pounds of methamphetamine from California to Iowa. AriasGonzales and others would then sell the methamphetamine in Sioux City. This

evidence, viewed in the light most favorable to the government and with all

reasonable inferences drawn in support of the jury’s verdict, was sufficient to allow

the jury to find that (1) a conspiracy to distribute methamphetamine existed, (2) AriasGonzales knew about the conspiracy, and (3) he knowingly became a part of the

conspiracy. See United States v. Vinton, 429 F.3d 811, 815 (8th Cir. 2005) (elements

of conspiracy to distribute methamphetamine); United States v. Urkevich, 408 F.3d

1031, 1036 (8th Cir. 2005) (sufficiency-of-evidence standard of review); United States

v. Dugan, 238 F.3d 1041, 1044-45 (8th Cir. 2001) (appellate court does not reweigh

evidence or test credibility of witnesses when reviewing sufficiency of evidence); see

also United States v. Hunt, 171 F.3d 1192, 1195 (8th Cir. 1999) (discussing 18 U.S.C.

§ 201(c)(2) and finding no error in allowing governmental witnesses to testify

pursuant to cooperation agreements when they are promised leniency in exchange for

truthful testimony). 

 At sentencing, the district court did not use an improper standard of proof, deny

Arias-Gonzales due process, or otherwise commit error by considering the testimony

of the witnesses who expected to receive sentencing leniency. See United States v.

Johnson, 450 F.3d 831, 833 (8th Cir. 2006) (sentencing enhancements need only be

proven by preponderance of evidence, not by clear and convincing evidence or by

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proof beyond reasonable doubt, and use of preponderance standard does not violate

due process).

We also conclude that the district court did not abuse its discretion or impose

an unreasonable sentence, as it calculated the advisory Guidelines sentencing range

after resolving the parties’ disputes, considered the 18 U.S.C. § 3553(a) factors, and

explained its reasons for selecting a sentence that represented a 24-month downward

variance from the bottom of the advisory Guidelines range. See United States v.

Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (reviewing court first ensures

that district court committed no significant procedural error, then considers

substantive reasonableness of sentence). There is no indication in the record that the

district court overlooked or misapplied any relevant section 3553(a) factor, or gave

significant weight to an improper or irrelevant factor. See United States v. Stults, 575

F.3d 834, 849 (8th Cir. 2009) (where record reflected that district court made

individualized assessment based on facts presented and specifically addressed

defendant’s proffered information in its consideration of sentencing factors, sentence

was not unreasonable); cf. United States v. Sicaros-Quintero, 557 F.3d 579, 583 (8th

Cir. 2009) (according presumption of reasonableness to sentence at bottom of

Guidelines range).

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

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

grant counsel’s motion to withdraw, subject to counsel informing Arias-Gonzales

about procedures for seeking rehearing or filing a petition for certiorari. We also deny

Arias-Gonzales’s motion to proceed pro se, but we note that the issues he raised in his

supplemental brief have been fully considered. 

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