United States v. John Edward Clark

2 F. App'x 625

• Court: Court of Appeals for the Eighth Circuit
• Decided: February 7, 2001
• Docket: 00-3263NE
• Status: Unpublished

Opinion

PER CURIAM.

John Edward Clark pleaded guilty to conspiring to distribute and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846, and the Dis trict Court 1 sentenced him to six-and-a-half years (seventy-eight months) imprisonment and five years supervised release. On appeal, Clark’s counsel has filed a brief and moved to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel suggests that, although Clark did not move for a downward departure below, the District Court should have granted one sua sponte under U.S.S.G. § 5K2.0. Clark has not filed a pro se supplemental brief.

We decline to reach counsel’s downward-departure argument because it is presented for the first time on appeal. See United States v. Favara, 987 F.2d 538, 540 (8th Cir.1993) (declining to address claim that District Court could have granted § 5K2.0 downward departure because it was not raised below). Having reviewed the record independently pursuant to Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous issues for appeal.

Accordingly, we affirm the judgment of the District Court, and we grant counsel’s motion to withdraw.

1 . The Honorable Thomas M. Shanahan, United States District Judge for the District of Nebraska.