United States v. Earl Price, Jr. ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3676
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Earl Martin Price, Jr., *
* [UNPUBLISHED]
Appellant. *
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Submitted: March 31, 2011
Filed: April 8, 2011
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Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
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PER CURIAM.
Earl Price, Jr., pleaded guilty to assaulting a corrections officer, in violation of
18 U.S.C. § 111(a)(1), (b), and the district court1 sentenced him to 105 months in
prison and 3 years of supervised release. His counsel moves to withdraw, and in a
brief filed pursuant to Anders v. California, 386 U.S. 738 (1967), he argues that the
sentence is unreasonable. In a supplemental pro se brief, Price argues that the
sentence is too harsh because he is ill and takes medication. He also seeks
appointment of new counsel.
1
The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
We conclude that the district court did not abuse its discretion in imposing the
sentence, see United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc),
because we find no procedural error or anything to rebut the presumption of
reasonableness that attaches to Price’s within Guidelines range sentence, see United
States v. Lozoya, 623 F.3d 624, 626 (8th Cir. 2010) (discussing substantive
reasonableness); United States v. Linderman, 587 F.3d 896, 901 (8th Cir. 2009)
(within Guidelines range sentence is presumed reasonable on appeal).
In his pro se submissions, Price may be suggesting that his guilty plea was
involuntary because of his mental condition, but any such argument is not cognizable
on direct appeal because Price did not move in the district court to withdraw his plea.
See United States v. Foy, 617 F.3d 1029, 1033-34 (8th Cir. 2010), cert. denied, 79
USLW 3477 (Feb. 22, 2011). Further, we have reviewed the record independently
under Penson v. Ohio, 488 U.S. 75, 80 (1988), and have found no nonfrivolous issues
for appeal.
Accordingly, we affirm the judgment of the district court, and we grant counsel
leave to withdraw, subject to counsel informing Price about procedures for seeking
rehearing or filing a petition for certiorari. We also deny Price’s pending motion for
counsel.
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