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United States v. Jorge Leyva, 05-1344 (2006)

Court: Court of Appeals for the Eighth Circuit Number: 05-1344 Visitors: 19
Filed: Mar. 13, 2006
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 05-1344 _ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the District * of Minnesota. Jorge Leyva, also known as Jorge * Leyva Hernandez, * [UNPUBLISHED] * Appellant. * _ Submitted: March 7, 2006 Filed: March 13, 2006 _ Before MELLOY, FAGG, and BENTON, Circuit Judges. _ PER CURIAM. Jorge Leyva appeals the 90-month prison sentence the district court* imposed after Leyva pleaded guilty to
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                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-1344
                                  ___________

United States of America,             *
                                      *
                   Appellee,          *
                                      * Appeal from the United States
      v.                              * District Court for the District
                                      * of Minnesota.
Jorge Leyva, also known as Jorge      *
Leyva Hernandez,                      *      [UNPUBLISHED]
                                      *
                   Appellant.         *
                                 ___________

                             Submitted: March 7, 2006
                                Filed: March 13, 2006
                                 ___________

Before MELLOY, FAGG, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

       Jorge Leyva appeals the 90-month prison sentence the district court* imposed
after Leyva pleaded guilty to a drug-conspiracy charge. On appeal, counsel has
moved to withdraw and has filed a brief under Anders v. California, 
386 U.S. 738
(1967).




      *
      The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.
       Construing the Anders brief as raising a challenge to the denial of a minor-role
reduction under the advisory Guidelines, the argument fails. Leyva admittedly helped
his co-conspirators hide a large quantity of drugs in the bumper of a car in which one
of his co-conspirators transported the drugs for distribution. We conclude the district
court's finding that Leyva’s role in the drug conspiracy was not minor compared to his
co-conspirators is not clearly erroneous. See U.S.S.G. § 3B1.2(b) & comment (n.5)
(minor participant is one “who is less culpable than most other participants, but whose
role could not be described as minimal”); United States v. Johnson, 
408 F.3d 535
,
538-39 (8th Cir. 2005) (propriety of § 3B1.2 adjustment is determined by comparing
acts of each participant in relation to relevant conduct for which participant is held
accountable and by measuring each participant’s individual acts and relative
culpability against elements of offense); United States v. Bustos-Torres, 
396 F.3d 935
,
947-48 (8th Cir.) (district court’s factual determination of defendant’s role in offense
may be reversed only if it is clearly erroneous, and it is defendant’s burden to prove
role reduction is warranted), cert. denied, 
125 S. Ct. 2557
(2005) and 
126 S. Ct. 203
(2005); United States v. Belitz, 
141 F.3d 815
, 818-19 (8th Cir. 1998) (defendant’s
voluntary and knowing storage of substantial amount of drugs was sufficient to
preclude minor-role decrease).

      Having carefully reviewed the record and finding no nonfrivolous issues, we
affirm the district court’s judgment, and grant counsel leave to withdraw.
                         ______________________________




                                          -2-

Source:  CourtListener

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