Opinion
No. 05-3195.
Submitted: December 26, 2006.
Filed: January 22, 2007.
Appeal from the United States District Court for the Northern District of Iowa.
Charles J. Williams, U.S. Attorney's Office. Cedar Rapids, IA, for Appellee.
Shelley A. Horak, Horak Associates, Sioux City, IA, for Appellant.
Before RILEY, COLLOTON, and GRUENDER, Circuit Judges.
[UNPUBLISHED]
Thomas Stoltenberg pleaded guilty to possessing with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). On appeal, counsel moved to withdraw and filed a brief underAnders v. California, 386 U.S. 738 (1967), asking us to review the reasonableness of the sentence the district court imposed. We denied counsel's withdrawal motion and ordered supplemental briefing as to whether the government breached the parties' plea agreement by not filing at sentencing a motion under U.S.S.G. § 3E1.1(b), whether any such breach is subject to review for plain error or otherwise, and, if so, whether relief is warranted under the applicable standard of review.
The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa.
Upon reviewing the parties' supplemental briefs, we agree with the government that under our governing precedent, Stoltenberg waived his right to raise an argument based on the government's failure to move for a third level acceptance-of-responsibility reduction. See United States v. Cohen, 60 F.3d 460, 462 (8th Cir. 1995) (defendant's failure to allege breach of agreement at sentencing, restate terms of agreement in open court, or move to withdraw plea based on breach constituted waiver of issue); United States v. Archambault, 344 F.3d 732, 737 (8th Cir. 2003). We also conclude that Stoltenberg's sentence within the unobjected-to Guidelines range was not unreasonable.
Accordingly, we affirm.