United States v. Timothy A. Kateusz ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1654
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Timothy A. Kateusz, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 31, 2007
Filed: June 7, 2007
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Before COLLOTON, BEAM, and BENTON, Circuit Judges.
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PER CURIAM.
A jury found Timothy A. Kateusz guilty of conspiring to manufacture 5 grams
or more of actual methamphetamine and attempting to manufacture 5 grams or more
of actual methamphetamine. The district court1 imposed two concurrent sentences of
120 months in prison and 8 years of supervised release, the statutory minimum. On
appeal, his counsel has moved to withdraw and has filed a brief under Anders v.
California, 386 U.S. 738 (1967), and Kateusz has filed a pro se supplemental brief.
For the reasons discussed below, we affirm the judgment of the district court.
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
First, we conclude that the district court2 did not err by crediting three police
officers’ testimony over Kateusz’s testimony at the suppression hearing. See
Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985). Second, we conclude
that the court did not err by imposing two $100 special assessments because Kateusz
is serving two sentences, the imposition of which does not violate double jeopardy.
See United States v. Boykins, 966 F.2d 1240, 1244-45 (8th Cir. 1992). Third, we
conclude that the court did not err by applying the enhanced statutory minimum of 21
U.S.C. § 841(b)(1)(B)(viii) because it applies to the instant manufacturing offenses,
see 21 U.S.C. § 841(a)(1), and Kateusz’s prior felony conviction for possessing a
controlled substance is a “prior conviction for a felony drug offense,” see 21 U.S.C.
§ 841(b)(1)(B); United States v. Maynie, 257 F.3d 908, 919 n.5 (8th Cir. 2001).
Fourth, we conclude that there was sufficient evidence to show that Kateusz could
manufacture at least 5 grams of actual methamphetamine. See United States v.
Anderson, 236 F.3d 427, 430 (8th Cir. 2001).
Finally, after reviewing the record independently pursuant to Penson v. Ohio,
488 U.S. 75 (1988), we conclude that there are no non-frivolous issues for appeal.
Accordingly, we affirm the judgment of the district court, and we grant counsel’s
motion to withdraw.
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2
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri, adopting the report and recommendation of the
Honorable Robert E. Larsen, United States Magistrate Judge for the Western District
of Missouri.
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