                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1569
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Emilio Valdez,                          *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: December 7, 2004
                                Filed: June 2, 2005
                                 ___________

Before BYE, MELLOY, and COLLOTON, Circuit Judges.
                           ___________

PER CURIAM.

       Emilio Valdez was convicted of possession with intent to distribute 50 grams
or more of methamphetamine. At trial, the government presented testimony from two
police officers who had searched Valdez’s car. Although Valdez was not driving the
car immediately before it was searched, he identified himself as the owner and
consented to a search. The officers found 460.6 grams of methamphetamine in the
vehicle. Nina Villela, who recently had pleaded guilty to unrelated drug charges and
was awaiting sentencing, also testified at trial. She indicated that Valdez frequently
distributed methamphetamine to her in quantities that ranged “from ounces to
pounds.”
       Valdez moved for a judgment of acquittal at the close of the government’s
case-in-chief, but the district court1 denied his motion. Valdez’s sole defense witness
was his brother, Antonio Ramirez Cortez, who testified that he – not Valdez – was the
person who set up drug buys with Villela, and that he identified himself as “Emilio”
when he was on the phone with her. Ramirez also testified that he was driving
Valdez’s vehicle the night that it was searched, and that Valdez had not been aware
that there were drugs in the car.

       The jury returned a verdict of guilty. A presentence investigation report
(“PSR”) recommended that Valdez be held responsible for 2.28 kilograms of
methamphetamine, based on the 460.6 grams that were found in Valdez’s car and on
Villela’s testimony that she had purchased four to five pounds of methamphetamine
from Valdez. The PSR thus recommended a guideline range of 151-188 months’
imprisonment. Valdez objected to the sufficiency of evidence to support the
recommended drug quantity. The district court sustained the objection in part, and
found that the drug quantity was between 500 grams and 1.5 kilograms. Valdez was
then sentenced to 121 months’ imprisonment and 5 years of supervised release.

       Valdez’s counsel has moved to withdraw and filed a brief under Anders v.
California, 386 U.S. 738 (1967), arguing that the evidence was insufficient to support
Valdez’s conviction. In considering the sufficiency of the evidence, we give the jury
verdict the benefit of all reasonable inferences, and we ask whether any reasonable
jury could have found the elements of the charged offense beyond a reasonable doubt.
United States v. McDougal, 137 F.3d 547, 553 (8th Cir. 1998). Valdez’s ownership
and control of the vehicle in which police found methamphetamine supported his
conviction based on a theory of constructive possession. See United States v. Campa-
Fabela, 210 F.3d 837, 839-40 (8th Cir. 2000). The jury also was entitled to believe


      1
        The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska.

                                         -2-
Villela’s testimony that she received methamphetamine from Valdez in the weeks
prior to his arrest and that she had seen him retrieve drugs from the area near the car’s
stereo. This testimony is further evidence of Valdez’s knowledge of, and his intent
to possess, the methamphetamine that was found in the vehicle.

       We have also considered the record in light of United States v. Booker, 125 S.
Ct. 738 (2005). Valdez did not object to the district court’s application of mandatory
sentencing guidelines or a sentence based on facts neither admitted by the defendant
nor proved to a jury beyond a reasonable doubt. Reviewing his sentence for plain
error, see United States v. Pirani, No. 03-2871, slip op. at 11 (8th Cir. April 29,
2005) (en banc), we do not believe there is a “reasonable probability” that Valdez
would have received a more favorable sentence if the district court had sentenced him
under the advisory guidelines scheme announced in Booker. His sentence at the low
end of the guidelines is insufficient to establish such a probability, Pirani, No. 03-
2871, slip op. at 12, and we find nothing in the record to indicate that the court would
have imposed a more lenient sentence under the advisory guidelines regime.
“‘[W]here the effect of the error on the result in the district court is uncertain or
indeterminate – where we would have to speculate – the appellant has not met his
burden of showing a reasonable probability that the result would have been different
but for the error.’” Id. at 13 (quoting United States v. Rodriguez, 398 F.3d 1291,
1301 (11th Cir. 2005)).

       After an independent review of the record under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no other nonfrivolous issues. We therefore affirm, and we grant
counsel’s motion to withdraw on the condition that counsel complies with Part V of
this court’s Amended Criminal Justice Act Plan.
                           ______________________________




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