United States v. Robbie Hudson ( 2020 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 20-1568
    ___________________________
    United States of America
    lllllllllllllllllllllPlaintiff - Appellee
    v.
    Robbie Donyel Hudson
    lllllllllllllllllllllDefendant - Appellant
    ____________
    Appeal from United States District Court
    for the Eastern District of Missouri - Cape Girardeau
    ____________
    Submitted: November 23, 2020
    Filed: December 9, 2020
    [Unpublished]
    ____________
    Before BENTON, KELLY, and GRASZ, Circuit Judges.
    ____________
    PER CURIAM.
    Robbie Donyel Hudson appeals after he pleaded guilty to a controlled
    substance offense pursuant to a plea agreement containing an appeal waiver, and the
    district court1 sentenced him to a term of imprisonment at the bottom of the United
    States Sentencing Guidelines Manual (“Guidelines”) advisory range. His counsel has
    moved to withdraw, and has filed a brief under Anders v. California, 
    386 U.S. 738
    (1967), arguing the district court should have compelled the government to file a
    motion for a downward departure under Guidelines § 5K1.1 based on Hudson’s
    substantial assistance. 2
    As an initial matter, we conclude the appeal waiver does not bar consideration
    of the sentencing issue raised in the Anders brief because the waiver was triggered
    only if the district court were to accept the total offense level agreed to in the plea
    agreement, yet the parties merely provided two estimated total offense levels, and the
    district court applied a different total offense level than the contemplated estimates.
    See United States v. Scott, 
    627 F.3d 702
    , 704 (8th Cir. 2010) (de novo review of
    validity and applicability of appeal waiver); United States v. Andis, 
    333 F.3d 886
    , 890
    (8th Cir. 2003) (en banc) (applying appeal waivers in plea agreements narrowly and
    strictly construing them against the government).
    We note, however, the record demonstrates Hudson ultimately conceded his
    assistance was not substantial; did not timely object, move the government to file a
    motion, or request a hearing in the district court; and received the sentence he
    requested. See United States v. Murphy, 
    248 F.3d 777
    , 779-80 (8th Cir. 2001)
    (holding the defendant waived appellate review of the government’s refusal to file a
    § 5K1.1 motion because he did not, among other things, properly object or request
    a departure, and he asked for – and received – a sentence at the bottom of the range);
    1
    The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
    Eastern District of Missouri.
    2
    We remind counsel an Anders brief must be done as an advocate for the
    appellant. See Evans v. Clarke, 
    868 F.2d 267
    , 268 (8th Cir. 1989).
    -2-
    cf. United States v. Thompson, 
    289 F.3d 524
    , 526 (8th Cir. 2002) (noting a defendant
    may not complain when the district court gave him exactly what his counsel requested
    – a sentence at the low end of the guideline range).
    Assuming, without deciding, the issue raised in the Anders brief was not thus
    otherwise waived, we conclude the district court committed no plain error when it did
    not review the government’s refusal to file a substantial assistance motion. See
    United States v. Osborne, 343 F. App’x 159, 162 (8th Cir. 2009) (unpublished per
    curiam) (reviewing for plain error when the defendant did not move to compel the
    government to file a substantial assistance motion or request a hearing at sentencing);
    see also United States v. Ford, 
    888 F.3d 922
    , 926 (8th Cir. 2018) (to establish plain
    error, a defendant must show (1) an error, (2) that was clear or obvious under current
    law, (3) that affected his substantial rights, and (4) that seriously affected the fairness,
    integrity, or public reputation of judicial proceedings). Specifically, Hudson cannot
    show an obvious error because the government was under no obligation to file the
    motion; he conceded the government’s decision was not based on an unconstitutional
    motive; and he failed to make a substantial showing the decision was not rationally
    related to a legitimate government interest, as he offered no evidence to rebut the
    government’s representations that he was insincere and uncooperative, and his efforts
    ultimately yielded no value. See United States v. Zeaiter, 
    891 F.3d 1114
    , 1125 (8th
    Cir. 2018) (noting the government's decision not to file substantial assistance motion
    is reviewable by the district court only after the defendant makes a substantial
    threshold showing such decision was based on an unconstitutional motive or was not
    rationally related to any legitimate government end); United States v. Hardy, 
    325 F.3d 994
    , 996 (8th Cir. 2003) (the government reasonably discounted the defendant’s
    information which provided little value); United States v. Wolf, 
    270 F.3d 1188
    , 1191
    (8th Cir. 2001) (encouraging full cooperation by defendants is a legitimate
    governmental purpose). In any event, Hudson received the sentence he requested,
    thus he cannot demonstrate his substantial rights were affected.
    -3-
    Finally, we have independently reviewed the record under Penson v. Ohio, 
    488 U.S. 75
     (1988), and have found no non-frivolous issues for appeal. Accordingly, we
    grant counsel’s motion to withdraw, and we affirm the judgment.
    ______________________________
    -4-