United States v. Mark A. Wynn

Eighth Circuit

United States v. Mark A. Wynn

54 F. App'x 630

CourtCourt of Appeals for the Eighth Circuit

DecidedJanuary 16, 2003

Docket01-3423

StatusUnpublished

This text of 54 F. App'x 630 (United States v. Mark A. Wynn) 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. Mark A. Wynn, 54 F. App'x 630 (8th Cir. 2003).

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Opinion

PER CURIAM.

Mark A. Wynn pleaded guilty to conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846. At sentencing, the district court 1 overruled Wynn’s objection to application of the career-offender Guideline, see U.S.S.G. § 4B1.1(B), which the presentence report had recommended based on a prior two-count state felony drug conviction (for which Wynn had received concurrent prison terms) and a prior federal felony drug conviction. After finding that the applicable sentencing range was 188-235 months, the court granted the government’s motion for a substantial-assistance downward departure, and sentenced Wynn to 90 months imprisonment and 4 years supervised release. On appeal, Wynn’s counsel has filed a brief and moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing the district court erred in finding Wynn was a career offender and the court should have granted a greater downward departure. Wynn has not filed a pro se supplemental brief.

First, we conclude that the career-offender determination was proper, despite Wynn’s assertion that one of the state counts of conviction had been set aside and the other was being appealed: at the time of this sentencing, at least one state count of conviction remained valid, and thus invalidation of the other state count would still leave the requisite two prior convictions. See U.S.S.G. §§ 4B1.1, 4B1.2(c). Second, the extent of the district court’s departure is unreviewable. See United States v. McFarlane, 309 F.3d 510, 516 (8th Cir.2002).

Having independently reviewed the record in accordance with Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous issues. Accordingly, we affirm. We also grant counsel’s motion to withdraw.

1

. The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri.

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PER CURIAM.

Mark A. Wynn pleaded guilty to conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846. At sentencing, the district court 1 overruled Wynn’s objection to application of the career-offender Guideline, see U.S.S.G. § 4B1.1(B), which the presentence report had recommended based on a prior two-count state felony drug conviction (for which Wynn had received concurrent prison terms) and a prior federal felony drug conviction. After finding that the applicable sentencing range was 188-235 months, the court granted the government’s motion for a substantial-assistance downward departure, and sentenced Wynn to 90 months imprisonment and 4 years supervised release. On appeal, Wynn’s counsel has filed a brief and moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing the district court erred in finding Wynn was a career offender and the court should have granted a greater downward departure. Wynn has not filed a pro se supplemental brief.

First, we conclude that the career-offender determination was proper, despite Wynn’s assertion that one of the state counts of conviction had been set aside and the other was being appealed: at the time of this sentencing, at least one state count of conviction remained valid, and thus invalidation of the other state count would still leave the requisite two prior convictions. See U.S.S.G. §§ 4B1.1, 4B1.2(c). Second, the extent of the district court’s departure is unreviewable. See United States v. McFarlane, 309 F.3d 510, 516 (8th Cir.2002).

Having independently reviewed the record in accordance with Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous issues. Accordingly, we affirm. We also grant counsel’s motion to withdraw.

1

. The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri.

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54 F. App'x 630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mark-a-wynn-ca8-2003.

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