United States v. John Lee Sanders

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 28, 2000
• Docket: 00-1160
• Status: Unpublished

Opinion

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________

No. 00-1160 ___________

United States of America, * * Appellee, * * v. * Appeal from the United States * District Court for the John Lee Sanders, also known as * Southern District of Iowa. Tommy Wayne McCullough, * [Unpublished] * Appellant. * ___________

Submitted: July 20, 2000 Filed: July 28, 2000 ___________

Before RICHARD S. ARNOLD, BEAM, and MURPHY, Circuit Judges. ___________

PER CURIAM.

John Lee Sanders appeals the district court’s1 sentence imposed following his guilty plea to drug trafficking, in violation of 21 U.S.C. § 841(a)(1). At sentencing, the district court departed downward, agreeing with Sanders that his criminal history category overstated the seriousness of his criminal history, but declined to depart under U.S. Sentencing Guidelines Manual § 5K2.16, p.s. (1998) based on Sanders’s post- arrest disclosure of certain additional drugs hidden in his home. While noting it had

1 The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa. discretion to depart under section 5K2.16, the district court found that Sanders already had been credited for his disclosure as the additional drugs were not considered in establishing his base offense level, and that Sanders’s case did not fall outside the heartland. On appeal, counsel moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), filing a brief in which he raises the issue whether the district court erred in denying Sanders a downward departure for his disclosure. Sanders has not filed a pro se supplemental brief.

Having carefully reviewed the record, we conclude counsel’s argument is unreviewable. See United States v. Correa, 167 F.3d 414, 417 (8th Cir. 1999) (denial of downward departure unreviewable where district court considered defense’s arguments, found no extraordinary circumstances warranting departure, and did not indicate it lacked authority to depart); United States v. Field, 110 F.3d 587, 591 (8th Cir. 1997) (discretionary decision not to depart downward from Guidelines is unreviewable on appeal absent unconstitutional motive).

In accordance with Penson v. Ohio, 488 U.S. 75 (1988), we have reviewed the record for any non-frivolous issues and have found none.

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

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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