United States v. Timothy Whittington

• Court: Court of Appeals for the Eighth Circuit
• Decided: November 30, 2021
• Docket: 21-2490
• Status: Unpublished

Opinion

United States Court of Appeals For the Eighth Circuit ___________________________

No. 21-2490 ___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Timothy Whittington

lllllllllllllllllllllDefendant - Appellant ____________

Appeal from United States District Court for the Western District of Missouri - Springfield ____________

Submitted: November 23, 2021 Filed: November 30, 2021 [Unpublished] ____________

Before KELLY, ERICKSON, and STRAS, Circuit Judges. ____________

PER CURIAM.

Timothy Whittington received a 120-month prison sentence after he pleaded guilty to committing a child-pornography offense. See 18 U.S.C. § 2252(a)(2), (b)(1). In an Anders brief, Whittington’s counsel suggests that the sentence is substantively unreasonable. See Anders v. California, 386 U.S. 738 (1967). A pro se supplemental brief raises a host of other claims. We conclude that Whittington’s sentence is substantively reasonable. See United States v. McKanry, 628 F.3d 1010, 1022 (8th Cir. 2011) (recognizing that “it is nearly inconceivable that” once a district court has varied downward, it “abuse[s] its discretion in not varying downward [even] further” (quotation marks omitted)). The record establishes that the district court 1 sufficiently considered the statutory sentencing factors, 18 U.S.C. § 3553(a), and did not rely on an improper factor or commit a clear error of judgment. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).

Whittington’s other claims fare no better. The district court’s comments do not support a judicial-bias claim, see Liteky v. United States, 510 U.S. 540, 555 (1994); the prosecutors did not engage in misconduct, see United States v. Hunter, 770 F.3d 740, 743 (8th Cir. 2014); the district court never prohibited him from withdrawing his guilty plea, see United States v. Foy, 617 F.3d 1029, 1033–34 (8th Cir. 2010); and the ineffective-assistance-of-plea-counsel claim will have to await “collateral” review, United States v. Ramirez-Hernandez, 449 F.3d 824, 826–27 (8th Cir. 2006).

Finally, we have independently reviewed the record and conclude that no other non-frivolous issues exist. See Penson v. Ohio, 488 U.S. 75, 82–83 (1988). We accordingly affirm the judgment of the district court and grant counsel permission to withdraw. ______________________________

1 The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri.

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