United States v. Phi An Tran ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-2649
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Phi An Tran, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: January 4, 2011
Filed: January 11, 2011
___________
Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Phi An Tran appeals the statutory minimum sentence the district court1 imposed
after he pleaded guilty to conspiring to distribute and to possess with intent to
distribute at least 5 kilograms of a mixture or substance containing cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. Counsel seeks leave to
withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967). In
the Anders brief, counsel argues that the mandatory sentence was unconstitutional,
resulting in a sentence that is unreasonable under United States v. Booker, 543 U.S.
1The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
220 (2005). He also argues that the facts warranted a Guidelines variance, and that
the sentence does not accord with the Guidelines or the plea agreement; we construe
these arguments as challenging the district court’s denial of safety-valve relief.
We review the constitutional argument for plain error because it was not raised
below, see United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc), and
we reject it. The constitutionality of mandatory minimum sentences for drug offenses
has long been confirmed. See Harmelin v. Michigan, 501 U.S. 957, 994-95 (1991);
United States v. Turner, 583 F.3d 1062, 1068 (8th Cir. 2009), cert. denied 130 S. Ct.
1928 (2010). Further, Booker’s reasonableness standard does not apply because the
court was without discretion to sentence Tran below the statutory minimum: the
government did not move for departure based on substantial assistance, and the court
did not clearly err in finding Tran ineligible for safety-valve relief because he admitted
that he refused to answer the government’s questions about his co-conspirators. See
18 U.S.C. § 3553(f) (defendant must truthfully provide to government all information
and evidence he has concerning offense or offenses that were part of same course of
conduct); United States v. Gregg, 451 F.3d 930, 937 (8th Cir. 2006) (Booker does not
relate to statutorily-imposed sentences); United States v. Bolanos, 409 F.3d 1045,
1047 (8th Cir. 2005) (clear error review of district court’s safety-valve findings);
United States v. Chacon, 330 F.3d 1065, 1066 (8th Cir. 2003) (only authority for court
to depart below statutory minimum sentence is in 18 U.S.C. § 3553(e) and (f), which
apply only when government makes motion for substantial assistance or when
defendant qualifies under safety-valve provision); United States v. Romo, 81 F.3d 84,
85 (8th Cir. 1996) (disclosures required to qualify for safety valve).
Finally, after reviewing the record independently under Penson v. Ohio, 488
U.S. 75 (1988), we find no nonfrivolous issues. Accordingly, the judgment is
affirmed, and counsel is granted leave to withdraw.
______________________________
-2-