United States v. Latayo Clark

Eighth Circuit

United States v. Latayo Clark

71 F. App'x 610

CourtCourt of Appeals for the Eighth Circuit

DecidedAugust 14, 2003

Docket02-4130

StatusUnpublished

This text of 71 F. App'x 610 (United States v. Latayo Clark) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Latayo Clark, 71 F. App'x 610 (8th Cir. 2003).

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Opinion

PER CURIAM.

In this direct criminal appeal, Clark challenges the sentence the district court 1 imposed after he pleaded guilty to conspiring to distribute, and to possess with intent to distribute, 50 grams or more of a substance containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1), 846. The district court sentenced Clark to 120 months imprisonment and 5 years supervised release. On appeal, Clark’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 Clark’s motion for a downward departure.

The district court’s decision not to grant the downward departure was clearly discretionary; thus, the decision is unreviewable. 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 deny *611 Clark’s pending motion and grant counsel’s motion to -withdraw.

A true copy.

1

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

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PER CURIAM.

In this direct criminal appeal, Clark challenges the sentence the district court 1 imposed after he pleaded guilty to conspiring to distribute, and to possess with intent to distribute, 50 grams or more of a substance containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1), 846. The district court sentenced Clark to 120 months imprisonment and 5 years supervised release. On appeal, Clark’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 Clark’s motion for a downward departure.

The district court’s decision not to grant the downward departure was clearly discretionary; thus, the decision is unreviewable. 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 deny *611 Clark’s pending motion and grant counsel’s motion to -withdraw.

A true copy.

1

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

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71 F. App'x 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-latayo-clark-ca8-2003.

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