United States v. Robert Williams, Jr. , 388 F. App'x 565 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2776
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Robert E. Williams, Jr., *
* [UNPUBLISHED]
Appellant. *
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Submitted: July 26, 2010
Filed: July 29, 2010
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Before BYE, BOWMAN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Pursuant to a written plea agreement, Robert Williams pleaded guilty to
conspiring to distribute and possess with intent to distribute 500 grams or more of a
methamphetamine mixture, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1), and 846.
The district court1 sentenced him within the applicable advisory Guidelines range to
121 months in prison and 5 years of supervised release. On appeal, Williams’s
counsel has moved for leave to withdraw and has filed a brief under Anders v.
California, 386 U.S. 738 (1967), questioning whether the district court erred in
1
The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.
declining to grant Williams safety-valve relief, and in sentencing Williams based on
the drug-quantity calculation contained in the presentence report without making an
independent drug-quantity finding. In addition, Williams has moved for appointment
of counsel.
First, we conclude that the district court did not err in concluding that Williams
was ineligible for safety-valve relief, because Williams conceded at sentencing that
he had two prior marijuana-possession convictions, which resulted in a total of two
criminal history points. See 18 U.S.C. § 3553(f)(1)-(5) (describing circumstances
where court shall impose sentence pursuant to Guidelines without regard to any
statutory minimum sentence); United States v. Barrera, 562 F.3d 899, 902-03 (8th Cir.
2009) (district court cannot reduce defendant’s criminal history score simply to make
him eligible for safety-valve relief under § 3553(f)); see also United States v. Wright,
329 Fed. Appx. 42, 43-44 (8th Cir. 2009) (unpublished per curiam) (where defendant
received two criminal history points for two prior Nebraska convictions for possession
of one ounce or less of marijuana, concluding that criminal history computation was
correct and defendant was ineligible for safety-valve relief). Second, we conclude that
Williams cannot challenge the drug-quantity calculation contained in the presentence
report, because he effectively withdrew his objection below. See United States v.
Thompson, 289 F.3d 524, 526-27 (8th Cir. 2002) (where defendant withdrew
objections in district court, he was precluded from raising those objections on appeal).
We also conclude that the district court did not impose an unreasonable sentence. See
United States v. Feemster, 572 F.3d 455, 461, 464 (8th Cir. 2009) (en banc) (standards
for reviewing sentence).
Finally, having reviewed the record independently under Penson v. Ohio, 488
U.S. 75, 80 (1988), we find no nonfrivolous issue for appeal. Accordingly, we grant
counsel’s motion to withdraw, deny Williams’s motion for appointed counsel, and
affirm the judgment of the district court.
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