United States v. Joseph J. Little ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-4077
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Joseph J. Little, * [UNPUBLISHED]
*
Appellant. *
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Submitted: June 4, 2003
Filed: June 10, 2003
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Before BOWMAN, BYE, and RILEY, Circuit Judges.
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PER CURIAM.
Joseph J. Little challenges the sentence the District Court1 imposed after he
pleaded guilty to making a false statement in attempting to acquire a firearm, in
violation of 18 U.S.C. § 922(a)(6) (2000); and to making a false statement to a
federally licensed firearms dealer, in violation of 18 U.S.C. § 924(a)(1)(A) (2000).
At sentencing, the District Court denied Little’s motion for a downward departure and
sentenced him to concurrent prison sentences of ninety-two months and sixty months,
to be followed by three years of supervised release.
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The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
On appeal, counsel has filed a brief under Anders v. California, 386 U.S. 738,
744 (1967), arguing that the District Court should have granted the requested
downward departure, which was based on Little’s extraordinary physical
impairments (sickle-cell anemia and severe osteoporosis). After careful review of the
record, we conclude that the District Court recognized its authority to depart and that
its decision not to depart was purely discretionary; thus, we will not review it. See
United States v. Orozco-Rodriguez, 220 F.3d 940, 942 (8th Cir. 2000).
Little also has filed a pro se brief raising several arguments, which we reject
seriatim as meritless. First, the government was under no obligation to supply the
court with information in support of Little’s motion to depart. See United States v.
Hammer, 3 F.3d 266, 272 (8th Cir. 1993) (noting that "burden of proof is on
defendant with respect to mitigating factors" at sentencing), cert. denied, 510 U.S.
1139 (1994). Second, Little did not object to the Court’s plea-hearing statement that
his sentences could be imposed consecutively and, even assuming arguendo that the
statement was erroneous, we see no indication that Little’s substantial rights were
affected. See United States v. Vonn, 535 U.S. 55, 58-59 (2002) (defendant who
allows an error under Rule 11 of the Federal Rules of Criminal Procedure to pass
without objection in trial court must satisfy Rule 52(b)'s plain-error requirement and
show that the error affected defendant’s substantial rights). Finally, Little did not
object when the District Court increased his offense level by two levels based on his
failure to appear at the first change-of-plea hearing; we see no plain error in this
§ 3C1.1 enhancement. See U.S.S.G. § 3C1.1, cmt. n.4(e) (2002) (enhancement
applies when defendant willfully fails to appear, as ordered, for judicial proceeding);
United States v. Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (en banc) (plain-error
standard of review applies when issues are not raised in district court).
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Upon reviewing the record independently under Penson v. Ohio, 488 U.S. 75,
82-84 (1988), we have found no nonfrivolous issues. Accordingly, we affirm. We
also grant counsel’s motion to withdraw.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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