United States v. Michael Ed Brewer

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 5, 2000
• Docket: 99-2337
• Status: Unpublished

Opinion

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________

No. 99-2337 ___________

United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Arkansas. Michael Ed Brewer, * * [UNPUBLISHED] Appellant. * ___________

Submitted: June 1, 2000 Filed: June 5, 2000 ___________

Before WOLLMAN, Chief Judge, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. ___________

PER CURIAM.

Pursuant to a written plea agreement, Michael Ed Brewer pleaded guilty to one count of distributing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (1994), and to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (1994). The District Court1 sentenced him to 121 months imprisonment and 3 years supervised release. We affirmed Brewer’s sentence on appeal. See United States v. Brewer, 141 F.3d 1170 (8th Cir. 1998) (unpublished per curiam). The

1 The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas. government later filed a motion to reduce Brewer’s sentence pursuant to Federal Rule of Criminal Procedure 35(b). The District Court granted the government’s motion, and resentenced Brewer to 78 months imprisonment and three years supervised release.

On appeal, counsel moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and although we granted Brewer permission to file a pro se supplemental brief, he has not done so. We conclude counsel’s Anders-brief arguments that Brewer’s original sentence violated the plea agreement, and was too harsh in light of the disparity between it and a co-defendant’s sentence, are unavailing. Brewer is not entitled in this appeal to raise issues he could have raised in a direct criminal appeal following his conviction and original sentencing. See Goff v. United States, 965 F.2d 604, 605 (8th Cir. 1992) (per curiam); cf. United States v. Kress, 58 F.3d 370, 373 (8th Cir. 1995) (where party could have raised issue in prior appeal but did not, court later hearing same case need not consider matter).

Upon review of the record in accordance with Penson v. Ohio, 488 U.S. 75, 80 (1988), we have found no other nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw and affirm.

A true copy.

Attest:

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

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