United States v. Angelia M. Orth ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1045
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United States of America, *
*
Plaintiff-Appellee, *
v. * Appeal from the United States
* District Court for the
Angelia M. Orth, * District of Nebraska.
*
Defendant-Appellant. * [UNPUBLISHED]
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Submitted: July 22, 2004
Filed: August 12, 2004
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Before MELLOY, LAY, and COLLOTON, Circuit Judges.
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PER CURIAM.
The Defendant challenges the district court’s denial of her motion for a
downward departure. See United States Sentencing Commission, Guidelines Manual,
§ 5K2.0 (Nov. 2002). The Defendant, by and through her counsel, raised several
mitigating circumstances to her sentence, but the trial judge found that these
circumstances did not warrant a downward departure. On appeal, her counsel has
moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738(1967).
This court has reviewed the record of the district court in accordance with
Penson v. Ohio, 488 U.S. 75 (1988), and finds no nonfrivolous issues. The district
court’s informed decision not to depart is not reviewable. See e.g., United States v.
Turechek, 138 F.3d 1226, 1228 (8th Cir. 1998). The district court’s decision is
affirmed. See 8th Cir. R. 47B.
We also grant defense counsel’s motion to withdraw. Counsel is reminded of
the obligations under Part V of this Court’s Amended Criminal Justice Act Plan.
Specifically, counsel is to advise the defendant of the right to file a petition for writ
of certiorari in the Supreme Court of the United States, and to inform the defendant
as to the merits and likelihood of success in the filing of such a petition. If counsel
determines there are meritorious issues, defense counsel shall assist the defendant in
filing a petition for writ of certiorari. If counsel determines there are no meritorious
issues warranting the filing of a petition for writ of certiorari, counsel shall advise the
defendant of the procedures for filing a petition pro se, and the time limits for the
filing of such a petition. Counsel shall file a certification with the clerk within 30
days certifying that he has complied with his obligations under Part V.
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