United States v. Anthony R. West , 158 F. App'x 752 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2377
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Anthony R. West, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 7, 2005
Filed: December 16, 2005
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Before WOLLMAN, FAGG, and ARNOLD, Circuit Judges.
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PER CURIAM.
Federal prisoner Anthony West appeals the judgment of the district court1
entered upon a motion by the government to reduce West’s sentence under Federal
Rule of Criminal Procedure 35 based on his substantial assistance. The court reduced
West’s sentence from 120 months to 90 months in prison.
West argues that the Assistant United States Attorney (AUSA) committed
prosecutorial misconduct in connection with the Rule 35 motion by alleging that West
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
had provided certain assistance, a disclosure that tarnished his reputation and
threatened the lives of West and his family. We find that West has not shown any
error, plain or otherwise, in the prosecutor’s actions in connection with the Rule 35
resentencing. The AUSA recounted West’s cooperation in order for West to receive
a downward departure, not to put him in any danger, and West agreed at the
resentencing hearing that he had provided the cooperation attributed to him. See
United States v. Olano, 507 U.S. 725, 732-35 (1993) (plain error standard).
West’s remaining claims are not properly before us, as they involve ineffective
assistance of counsel--a matter for proceedings under 28 U.S.C. § 2255--or they relate
to his original sentence and either were or could have been raised in his prior appeal.
See United States v. Stuckey, 255 F.3d 528, 530-31 (8th Cir.) (“law of the case”
doctrine governs issues decided in prior appeal), cert. denied, 534 U.S. 1011 (2001);
United States v. Kress, 58 F.3d 370, 373 (8th Cir. 1995) (where party could have
raised issue in prior appeal but did not, court later hearing same case need not consider
matter). West’s section 2255 motion is not the subject of this appeal.
The judgment is affirmed, and the motion to correct plain error is denied.
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