United States v. Larry Duane Smith , 156 F. App'x 871 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1237
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Larry Duane Smith, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 15, 2005
Filed: December 8, 2005
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Before ARNOLD, FAGG, and SMITH, Circuit Judges.
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PER CURIAM.
Larry Smith pleaded guilty to conspiring to manufacture 50 grams or more of
methamphetamine, in violation of 21 U.S.C. § 846. Because prior drug convictions
subjected Smith to statutory minimum penalties, and the government so notified him,
see 21 U.S.C. §§ 841(b)(1)(B), 851(a)(1), the district court1 sentenced Smith to 10
years in prison and 8 years of supervised release. On appeal, Smith’s counsel has
moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967),
1
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
noting Smith’s belief that the government should have filed a downward-departure
motion for substantial assistance and he should have received a lesser sentence.
We conclude that the district court did not err in imposing the statutory
mandatory minimum sentence, and that Smith has not shown the government
improperly refused to file a substantial-assistance motion. See Wade v. United States,
504 U.S. 181, 185-86 (1992) (defendant must show government’s refusal to move for
departure was not rationally related to any legitimate government purpose); United
States v. Chacon, 330 F.3d 1065, 1066 (8th Cir. 2003) (district court did not have
authority to depart below statutory minimum where government did not file
substantial-assistance motion and defendant did not qualify for safety-valve relief).
We also conclude that the sentence did not raise issues under United States v. Booker,
125 S. Ct. 738 (2005). See United States v. Thomas, 398 F.3d 1058, 1063-64 (8th Cir.
2005); United States v. Vieth, 397 F.3d 615, 620 (8th Cir.), cert. denied, 125 S. Ct.
2560 (2005).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we have found no nonfrivolous issues. Accordingly, we affirm, and we grant
counsel’s motion to withdraw.
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