United States v. Eddie Graves

68 F. App'x 766

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 17, 2003
• Docket: 02-4007
• Status: Unpublished

Opinion

PER CURIAM.

In this direct criminal appeal, Graves challenges the sentence the district court 1 imposed after he pleaded guilty to conspiring to distribute, and to possess with intent to distribute, 5 kilograms or more of a substance containing cocaine, in violation of 21 U.S.C. §§ 841(b)(1), 846. The district court sentenced Graves to 120 months imprisonment and 5 years supervised release. On appeal, Graves’s counsel has moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that the district court erred in denying his motion for a downward departure.

The district court’s decision not to grant the downward departure was clearly discretionary; thus, the decision is unreview able. See United States v. VanHouten, 307 F.3d 693, 696 (8th Cir.2002) (discretionary decision not to depart from Guidelines is unreviewable on appeal absent unconstitutional motive, unless district court erroneously concluded it lacked authority to depart).

Following careful review of the record, we find no other nonfrivolous issues. See Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). Accordingly, the judgment is affirmed. We also grant counsel’s motion to withdraw.

A true copy.

1 . The Honorable Laurie Smith Camp, United States District Judge for the District of Nebraska.