United States v. Orin Johnson ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2382
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Orin Fredrick Johnson, *
* [UNPUBLISHED]
Appellant. *
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Submitted: August 7, 2006
Filed: August 14, 2006
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Before RILEY, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Orin Johnson appeals the 46-month prison sentence the district court1 imposed
after he pleaded guilty to one count of conspiring to distribute and possess with intent
to distribute methamphetamine, in violation of 21 U.S.C. § 846. His counsel has filed
a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the district court
erred in finding that Johnson’s post-arrest rehabilitation was not sufficiently
extraordinary to warrant a downward departure.
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
While atypical post-offense rehabilitation can by itself be the basis for a
discretionary departure under U.S.S.G. § 5K2.0, see United States v. Chapman, 356
F.3d 843, 849 (8th Cir. 2004), the denial of such a motion is unreviewable where the
district court recognized its authority to depart downward and declined to do so, see
United States v. Vasquez, 433 F.3d 666, 670 (8th Cir. 2006).
Having reviewed the record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we
conclude there are no nonfrivolous issues. Accordingly, we affirm the district court’s
judgment, and we grant counsel leave to withdraw.
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