United States v. John L. Session ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-4017
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
John Luther Session, * [UNPUBLISHED]
*
Appellant. *
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Submitted: October 7, 1998
Filed: October 16, 1998
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Before WOLLMAN, BRIGHT, and HANSEN, Circuit Judges.
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PER CURIAM.
A jury found John Luther Session guilty of conspiring to distribute cocaine base,
and of distributing and aiding and abetting the distribution of cocaine base on March
7 and 11, 1997, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1), (b)(1)(B).
Session withdrew post-trial motions for judgment of acquittal and for mistrial in
exchange for the government&s stipulation to a three-level acceptance-of-responsibility
reduction for sentencing purposes. At sentencing, Session objected to the presentence
report&s drug-quantity calculation and testified on his own behalf that he had delivered
no more than 3 grams of cocaine base on March 11 and was not involved in the March
7 transaction. The district court1 found that even without the March 7 amount, Session
was responsible for more than 5 grams of cocaine base, as the laboratory report, which
the court found to be credible, stated that the amount delivered on March 11 was 7.61
grams. Taking into account Session&s prior drug-distribution conviction, the court
sentenced him to the statutory minimum of 120 months' imprisonment and 8 years'
supervised release. Appellate counsel moved to withdraw pursuant to Anders v.
California, 386 U.S. 738 (1967), and Session did not file a pro se supplemental brief.
The only issue raised on appeal is whether trial counsel was ineffective for
failing to conduct any testing or examination of the alleged controlled substance. We
conclude that this claim would be more appropriately addressed in a 28 U.S.C. § 2255
proceeding, in which a record can be fully developed. See United States v. Mitchell,
136 F.3d 1192, 1193 (8th Cir. 1998).
Upon review of the record in accordance with Penson v. Ohio, 488 U.S. 75, 80
(1988), we find no nonfrivolous issues. Accordingly, the judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
1
The Honorable Donald E. O&Brien, United States District Judge for the Northern
District of Iowa.
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