United States v. Robert Jon Lucas , 258 F. App'x 920 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3488
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Robert Jon Lucas, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 21, 2007
Filed: December 28, 2007
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Before MURPHY, SMITH, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Robert Jon Lucas pleaded guilty to manufacturing a methamphetamine mixture,
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). The district court1 sentenced him
below the applicable advisory Guidelines range to 180 months in prison and 6 years
of supervised release. On appeal, his counsel has moved to withdraw and filed a brief
under Anders v. California, 386 U.S. 738 (1967). In pro se filings, Lucas maintains
that, under United States v. Booker, 543 U.S. 220 (2005), his Fifth and Sixth
1
The Honorable Robert W. Pratt, Chief Judge, United States District Court for
the Southern District of Iowa.
Amendment rights have been violated, and he appears to assert a claim of ineffective
assistance of counsel. For the following reasons, we affirm.
To begin, we decline to consider any ineffective assistance claim that Lucas
may be raising. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003)
(claims of ineffective assistance ordinarily should be brought under 28 U.S.C. § 2255because they normally involve facts outside original record). As to Lucas’s assertions
of Booker error, we conclude that the district court properly recognized the advisory
nature of the Guidelines, as evidenced by the downward variance Lucas received. See
Booker, 543 U.S. at 233-37, 245, 258-59 (Sixth Amendment problem resulting from
mandatory nature of Guidelines remedied by making Guidelines advisory). We
further conclude that the 180-month sentence is not unreasonable--and the district
court did not abuse its discretion--because the court considered appropriate factors
under 18 U.S.C. § 3553(a), such as the Guidelines imprisonment range, the nature and
circumstances of Lucas’s background, his relevant conduct, and his drug addiction;
the court did not consider an improper or irrelevant factor, fail to consider a relevant
factor, or make a clear error of judgment in weighing appropriate factors; and the
court clearly and reasonably determined that the circumstances justified only a “slight
variance” from the applicable Guidelines range. See 18 U.S.C. § 3553(a)(1), (4)(A);
Gall v. United States, No. 06-7949, 2007 WL 4292116 at * 7 (U.S. Dec. 10, 2007)
(abuse-of-discretion review standard applies to appellate review of all sentencing
decisions whether inside or outside Guidelines range); Rita v. United States, 127 S.
Ct. 2456, 2468-69 (2007) (inferring district court’s reasoning from context and
examination of whole record); Booker 543 U.S. at 264 (courts of appeals review
sentencing decisions for unreasonableness); United States v. Haack, 403 F.3d 997,
1004 (8th Cir. 2005) (stating ways in which abuse of discretion may occur).
Having reviewed the record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we
find no nonfrivolous issues. Accordingly, we affirm the district court’s judgment, we
deny Lucas’s pending motions, and we grant counsel’s motion to withdraw on the
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condition that counsel inform appellant about the procedures for filing petitions for
rehearing and for certiorari.
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