United States v. Norman ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-3584
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Robert Norman, also known as Bubba, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: July 24, 1998
Filed: August 5, 1998
___________
Before BOWMAN, Chief Judge, BRIGHT, and MURPHY, Circuit Judges.
___________
PER CURIAM.
Robert Norman pleaded guilty to conspiring to distribute methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1) and 846 (1994). Although Norman was initially
granted release pending sentencing, the magistrate judge1 later revoked release after
finding that Norman had violated various release conditions. At sentencing, the District
1
The Honorable Thomas D. Thalken, United States Magistrate Judge for the
District of Nebraska.
Court2 determined Norman had a Guidelines imprisonment range of 57 to 71 months,
and the government moved for a downward departure pursuant to 18 U.S.C. § 3553(e)
(1994) and U.S. Sentencing Guidelines Manual § 5K1.1, p.s. (1995) based on
Norman&s substantial assistance, recommending a sentence “somewhere around a three
year range.” The Court granted the government&s motion, but sentenced Norman to 48
months imprisonment and five years supervised release because of his pretrial release
conduct. On appeal, counsel moved to withdraw and filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), arguing that the extent of the departure was
insufficient, given the government&s sentencing recommendation. We affirm.
Because counsel is merely objecting to the extent of the District Court&s
downward departure, this challenge is unreviewable. See United States v. Goodwin,
72 F.3d 88, 89, 91 (8th Cir. 1995) (extent of district court&s downward departure under
§ 3553(e) and § 5K1.1 is unreviewable on appeal). Counsel also suggests that the
Court improperly punished Norman by considering his pretrial release conduct in
fashioning its sentence. This argument is merely a variation of counsel&s unreviewable
challenge to the extent of the departure, and we also note the District Court stated at
sentencing that Norman would be given credit for the time he was incarcerated pending
sentencing.
We have reviewed the record in accordance with Penson v. Ohio, 488 U.S. 75,
80 (1988), for any nonfrivolous issues for appeal, and have found none.
Accordingly, we affirm the judgment of the District Court. Counsel&s motion to
withdraw is hereby granted.
2
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
-2-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-