United States v. Kory Pierson

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-2269
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Kory Lowell Pierson, * Southern District of Iowa.
*
Appellant. * [UNPUBLISHED]
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Submitted: December 7, 1998
Filed: December 14, 1998
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Before FAGG, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Kory Lowell Pierson pleaded guilty to conspiring to manufacture and distribute
methamphetamine, in violation of 21 U.S.C. § 846. Granting Mr. Pierson a downward
departure for substantial assistance, and rejecting his request for a downward departure
based on drug and alcohol addiction, the district court1 sentenced Mr. Pierson to 90
months imprisonment and five years supervised release. This appeal followed. After
appellate counsel moved to withdraw pursuant to Anders v. California, 386 U.S. 738
1
The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
(1967), we granted Mr. Pierson permission to file a pro se supplemental brief, but he
has not done so.
In his Anders brief, counsel argues that the district court erred in refusing to
grant the additional downward departure based on Mr. Pierson’s addiction, which the
defense claimed had caused him to commit crimes representing most of his criminal
history points. Even assuming the district court had authority to grant a downward
departure on this basis, we conclude the court’s refusal to depart was a discretionary
decision which is unreviewable on appeal. See United States v. Darden, 70 F.3d 1507,
1549 (8th Cir. 1995), cert. denied, 517 U.S. 1149, and cert. denied, 518 U.S. 1026
(1996).
Counsel also argues that the district court erred in refusing to grant a greater
downward departure for Mr. Pierson’s substantial assistance, but the extent of such a
departure is likewise unreviewable. See United States v. McCarthy, 97 F.3d 1562,
1577 (8th Cir. 1996), cert. denied, 117 S. Ct. 1011, and cert. denied, 117 S. Ct. 1284
(1997).
Upon review of the record in accordance with Penson v. Ohio, 488 U.S. 75, 80
(1988), we find no nonfrivolous issues.
Accordingly, the judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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