United States v. Zeno E. Sims ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2156
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Zeno E. Sims, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 3, 2002
Filed: December 10, 2002
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Before BOWMAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
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PER CURIAM.
Zeno E. Sims pleaded guilty to distributing five grams or more of a mixture
containing cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2000), and the District
Court1 sentenced him to 235 months imprisonment--to be served concurrently with
any sentence he was to receive for a Missouri conviction on which he had not yet
been sentenced--and five years of supervised release. His counsel has moved to
withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing
for reversal because the District Court erred in sentencing Sims at the top of the
1
The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
guidelines imprisonment range. In a pro se supplemental brief, Sims joins in that
argument, but he principally argues that he has now received a thirty-year sentence
on his state court conviction and that his state and federal sentences will run
concurrently only if he is ordered to serve both sentences in state prison. He thus
asks to be transferred to the custody of the Missouri Department of Corrections so
that he may be confined in state prison.
We will not review Sims’s sentence simply because the District Court selected
a sentence at the top of the guidelines range. See 18 U.S.C. § 3742(a) (2000); United
States v. Woodrum, 959 F.2d 100, 101 (8th Cir. 1992) (per curiam). Furthermore, the
District Court sufficiently stated on the record its reasons for sentencing Sims as it
did. See 18 U.S.C. § 3553(c)(1) (2000).
Sims’s pro se argument concerning his place of confinement challenges the
execution of his federal sentence, not its validity or legality, and Sims should bring
that challenge in a petition under 28 U.S.C. § 2241 (2000) after exhausting his
remedies with the Bureau of Prisons. See 18 U.S.C. § 3621(b) (2000) (stating that
Bureau of Prisons has plenary power to designate place of confinement); United
States v. Chappel, 208 F.3d 1069, 1069-70 (8th Cir. 2000) (per curiam); United States
v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987).
Having found no nonfrivolous issues following our independent review of the
record in accordance with Penson v. Ohio, 488 U.S. 75, 80 (1988), we grant counsel’s
motion to withdraw.
Accordingly, we affirm.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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