United States v. Damarius Simmons , 258 F. App'x 63 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2924
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Northern District of Iowa.
*
Damarius Asim Simmons, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 13, 2007
Filed: December 18, 2007
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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Damarius Simmons appeals the 270-month sentence the district court1 imposed
after granting the government’s post-judgment Federal Rule of Criminal Procedure
35(b) motion to reduce his sentence based on substantial assistance. Simmons’s
counsel has moved to withdraw and has filed a brief under Anders v. California, 386
U.S. 738 (1967), arguing that the reduced sentence is unreasonable because (1) the
court did not adequately consider Simmons’s extraordinary cooperation or the danger
it posed to himself and his family; and (2) other defendants who have provided similar
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
assistance have received much larger reductions. In a pro se supplemental brief,
Simmons argues that both the government’s recommendation of a 25% sentencing
reduction and the court’s decision to adopt that recommendation were
unconstitutionally motivated by racial animus. For support, he contends that the
Northern District of Iowa is notorious for granting smaller sentencing reductions to
blacks than whites, as allegedly shown in a Department of Justice (DOJ) report for the
years 1987 to 2004, and that his counsel deliberately ignored his request to obtain the
DOJ report and moved to withdraw, effectively depriving Simmons of his rights to
present evidence in the district court and to appeal.
To begin, we decline to consider any ineffective-assistance claim that Simmons
may be raising. See United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th
Cir. 2006) (court “will consider ineffective-assistance claims on direct appeal only
where the record has been fully developed, where not to act would amount to a plain
miscarriage of justice, or where counsel’s error is readily apparent”).
Further, while Simmons purports to challenge the reasonableness of his reduced
sentence, he is actually appealing the district court’s ruling on the government’s Rule
35(b) motion, which we lack jurisdiction to review. See United States v. Haskins, 479
F.3d 955, 957 (8th Cir. 2007) (per curiam) (court lacks jurisdiction to hear appeal of
district court’s decision on Rule 35(b) motion; United States v. Booker, 543 U.S. 220(2005), did not expand 18 U.S.C. § 3742(a) to include appellate review of
discretionary sentencing reductions; although defendant framed issue as sentence’s
overall reasonableness, he was appealing district court’s ruling on motion to reduce
sentence). As to Simmons’s argument that the government’s sentencing
recommendation and the court’s sentencing decision were based on racial animus, we
conclude that he has made no showing of such motivation in the instant case. See
United States v. Williams, 324 F.3d 1049, 1050 (8th Cir. 2003) (per curiam) (court’s
refusal to depart further under U.S.S.G. § 5K1.1 is not reviewable unless defendant
makes substantial showing that court’s decision was based on unconstitutional
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motive); United States v. Marks, 244 F.3d 971, 973 n.1 (8th Cir. 2001) (court relies
on § 5K1.1 cases in analyzing application of Rule 35(b)); cf. Wade v. United States,
504 U.S. 181, 185-86 (1992) (district court may review government’s refusal to file
substantial-assistance motion and grant remedy if refusal to file is based on
unconstitutional motive, but mere showing that defendant provided substantial
assistance, whether standing alone or coupled with generalized allegations of
government’s improper motive, is insufficient).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues for direct appeal. Accordingly, we grant
counsel’s motion to withdraw, and we affirm.
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