United States v. Timothy Whittington ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-2490
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Timothy Whittington
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: November 23, 2021
Filed: November 30, 2021
[Unpublished]
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Before KELLY, ERICKSON, and STRAS, Circuit Judges.
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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.
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1
The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri.
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