United States v. Elmore George, III

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2283
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Elmore George, III, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 11, 2010
Filed: November 23, 2010
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Before BYE, BOWMAN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Pursuant to a written plea agreement, Elmore George pleaded guilty to
knowingly conspiring to possess with the intent to distribute oxycodone, in violation
of 21 U.S.C. §§ 841(a)(1) and 846. The district court1 sentenced him to 151 months
in prison, followed by three years of supervised release.
On appeal, counsel has filed a brief under Anders v. California, 386 U.S. 738(1967), in which he seeks to withdraw. Counsel argues that an appeal waiver
1
The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
contained in George’s plea agreement is not enforceable, that the district court did not
adequately consider the 18 U.S.C. § 3553(a) sentencing goals, that George was
improperly designated as a career offender, and that his criminal history was
overstated and warranted a downward departure. George argues in a pro se
supplemental brief that the district court failed to establish a factual basis for his guilty
plea or to determine whether he understood the nature of the charge against him, and
that these errors affected his substantial rights.
We agree that George’s appeal is not barred by the appeal waiver in his plea
agreement, because the waiver was conditioned upon the court following the parties’
Guidelines recommendations, which the court did not do. See United States v. Luleff,
574 F.3d 566, 568-69 (8th Cir. 2009). We nevertheless affirm on the merits.
First, we conclude that George was correctly designated a career offender. See
U.S.S.G. § 4B1.1(a) (defendant is career offender if, inter alia, he has at least two
prior felony convictions for controlled-substance offense); United States v. Ojeda-
Estrada, 577 F.3d 871, 875 (8th Cir. 2009) (de novo review of career-offender status).
We also decline to review the district court’s discretionary decision not to grant
George a downward departure. See United States v. Betts, 509 F.3d 441, 446 (8th Cir.
2007) (discretionary denial of downward-departure motion based on overstated
criminal history is generally unreviewable on appeal).
We further find that the district court did not commit any procedural sentencing
error, because the court correctly calculated the advisory Guidelines range, properly
considered and sentenced George based only on relevant section 3553(a) factors, and
explained its reasons for the within-Guidelines-range sentence. The court also did not
impose a substantively unreasonable sentence. See United States v. Feemster, 572
F.3d 455, 461 (8th Cir. 2009) (en banc); see also United States v. Perkins, 526 F.3d
1107, 1110 (8th Cir. 2008).
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Last, we conclude that the district court properly advised George of the nature
of the charge against him and sufficiently established a factual basis for the plea. See
United States v. Marks, 38 F.3d 1009, 1012-13 (8th Cir. 1994).
Having reviewed the record independently pursuant to Penson v. Ohio, 488
U.S. 75 (1988), we have found no nonfrivolous issues. We grant counsel’s request
to withdraw, and we affirm.
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