United States v. Angelia M. Orth ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1045
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Angelia M. Orth, *
* [UNPUBLISHED]
Appellant. *
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Submitted: July 22, 2004
Filed: July 12, 2005 (corrected 7/14/05)
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Before MELLOY, LAY, and COLLOTON, Circuit Judges.
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PER CURIAM.
Angelia Orth pled guilty to conspiracy to possess with intent to distribute 500
or more grams of methamphetamine. Before sentencing, Orth moved for a downward
departure from the otherwise applicable sentencing guideline range pursuant to USSG
§ 5K2.0, arguing that her case fell outside the heartland of methamphetamine cases
because she had voluntarily withdrawn from the conspiracy and stopped using drugs
prior to her conviction. The district court1 denied Orth’s motion, adopted the
recommendations of the PSR, and sentenced Orth to 70 months’ imprisonment.
In a brief filed pursuant to Anders v. California, 386 U.S. 738 (1967), Orth’s
counsel has moved to withdraw and argued that the district court erred in denying
Orth’s motion for a downward departure. Although the Supreme Court’s decision in
United States v. Booker, 125 S. Ct. 738 (2005), rendered the guidelines effectively
advisory, the district courts must still determine an advisory guideline sentence, and
this determination includes whether a defendant is entitled to a downward departure.
See United States v. Haack, 403 F.3d 997, 1003 (8th Cir. 2005). “When a district
court considers a motion for downward departure and rejects it, that decision is not
reviewable.” United States v. Turechek, 138 F.3d 1226, 1228 (8th Cir. 1998). The
district court here considered Orth’s motion for a downward departure, and
acknowledged that it had the discretion to depart. Therefore, the decision not to
depart from the guidelines is unreviewable.
We have also considered the record in light of Booker. Orth did not object to
the district court’s application of mandatory guidelines or to the court’s consideration
of facts neither admitted by the defendant nor proved to a jury beyond a reasonable
doubt. We thus review her sentence for plain error, United States v. Pirani, 406 F.3d
543, 549-50 (8th Cir. 2005) (en banc), and we have found nothing in the record to
indicate a “reasonable probability” that Orth would have received a more favorable
sentence if the district court had sentenced her under the advisory regime announced
in Booker.
Although Orth was sentenced at the low end of the guidelines range, that is not
sufficient to demonstrate plain error warranting relief. Pirani, 406 F.3d at 553. In
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
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denying Orth’s motion to depart downward based on her withdrawal from the
conspiracy, the court observed that such a withdrawal was “not terribly unusual,” that
the “harm has been done,” and that the harm caused by Orth’s offense, which
involved 1.47 kilograms of methamphetamine, was “very great.” (S. Tr. at 6). Orth
did benefit already from the safety-valve provisions of 18 U.S.C. § 3553(f) and USSG
§ 5C1.2, which permitted the court to sentence her below the otherwise applicable
mandatory minimum sentence of 120 months. “‘[W]here the effect of the error on the
result in the district court is uncertain or indeterminate – where we would have to
speculate – the appellant has not met [her] burden of showing a reasonable
probability that the result would have been different but for the error.’” Pirani, 406
F.3d at 553 (quoting United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir.
2005)).
Upon our independent review under Penson v. Ohio, 488 U.S. 75, 80 (1988),
we find no other nonfrivolous issues. We therefore affirm and grant counsel’s motion
to withdraw on the condition that counsel complies with Part V of our court’s
Amended Criminal Justice Act Plan.
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