United States v. Marcus Mister ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2476
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Marcus Mister, * [UNPUBLISHED]
*
Appellant. *
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Submitted: January 21, 2010
Filed: February 3, 2010
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Before BYE, RILEY, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Marcus Mister pleaded guilty to distributing a mixture or substance containing
cocaine base, in violation of 21 U.S.C. § 841(a), (b)(1)(C); and to aiding and abetting
the distribution of 5 grams or more of a mixture or substance containing cocaine base,
in violation of 21 U.S.C. §§ 841 (a)(1), (b)(1)(B) & 2. The district court1 determined
that Mister was a career offender with an advisory Guidelines range of 188-235
months in prison, but sentenced him below the range to concurrent sentences of 144
months in prison and concurrent 3- and 4-year terms of supervised release. Counsel
1
The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.
has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738(1967), raising the following issues: (1) the sentence is too long; (2) Mister’s two
prior controlled-substance offenses should not have earned criminal history points or
triggered career-offender status, because the court suspended sentence in each case;
and (3) counsel was ineffective.
These arguments are unavailing. The unobjected-to criminal history score is
not erroneous, plainly or otherwise: a conviction for which imposition or execution
of sentence is totally suspended or stayed is counted as a prior sentence under
U.S.S.G. § 4A1.1(c), and therefore the prior controlled-substance offenses earned
criminal history points and also triggered career-offender status. See U.S.S.G.
§§ 4A1.2(a)(3), 4B1.1(a)&(b), 4B1.2(c); United States v. Linderman, 587 F.3d 896,
899 (8th Cir. 2009) (plain error review for unobjected-to procedural error).
We also conclude that the sentence is not substantively unreasonable, see
United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009); and the ineffective-
assistance argument is not properly before us in this direct criminal appeal, see United
States v. McAdory, 501 F.3d 868, 872-73 (8th Cir. 2007). Finally, having reviewed
the record 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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