United States v. Roy L. Wood , 157 F. App'x 948 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3313
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Roy L. Wood, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 31, 2005
Filed: December 6, 2005
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Before MURPHY, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Roy Wood pleaded guilty to conspiring to distribute and possess with intent to
distribute methamphetamine, in violation of 21 U.S.C. § 846. Viewing the Guidelines
as mandatory and calculating a Guidelines imprisonment range of 78 to 97 months,
the district court1 discussed Wood’s recent violent criminal conduct and his personal
characteristics, noted the 18 U.S.C. § 3553(a) factors, and then imposed a prison term
of 97 months. On appeal, Wood’s counsel has moved to withdraw and filed a brief
under Anders v. California, 386 U.S. 738 (1967), questioning the court’s decision to
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
sentence Wood at the top of the range. Wood moves for appointment of new counsel,
and argues in his pro se brief that the government breached the implicit terms of the
plea agreement by not recommending a sentence at the bottom of the Guidelines
range, and that venue was improper because he did not commit any crimes in
Nebraska.
We reject Wood’s pro se arguments. His first contention is contrary to the plea
agreement’s express statement that no other promises or agreements existed outside
the document. Both contentions are contrary to Wood’s sworn testimony at the plea
hearing. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in
open court carry a strong presumption of verity.”).
As to the issue raised in the Anders brief, under the mandatory Guidelines
scheme before United States v. Booker, 125 S. Ct. 738 (2005), the district court’s
decision to sentence at the top of the applicable Guidelines range was unreviewable,
see United States v. Woodrum, 959 F.2d 100, 101 (8th Cir. 1992) (per curiam). While
we now know that it was error to sentence Wood under mandatory Guidelines, the
error was not preserved, and the district court gave no indication it would have
imposed a lower sentence under advisory Guidelines; moreover, we conclude that the
sentence was not unreasonable in light of the court’s consideration of appropriate
factors. See Booker, 125 S. Ct. at 756-57; United States v. Pirani, 406 F.3d 543, 550,
552 (8th Cir. 2005) (en banc) (preservation of Booker error; plain-error standard of
review), cert. denied, 126 S. Ct. 266 (2005); United States v. Maury, 138 Fed. Appx.
875, 876 (8th Cir. 2005) (unpublished per curiam).
Having reviewed the record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we
find no other nonfrivolous issues. Accordingly, we grant counsel’s motion to
withdraw, deny Wood’s motion to appoint new counsel, and affirm.
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