United States v. Charles C. Gibson Jr

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-3339
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Charles C. Gibson, Jr., also know as * Eastern District of Missouri.
Chuck Gibson, *
* [UNPUBLISHED]
Appellant. *
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Submitted: March 3, 2000
Filed: March 10, 2000
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Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Charles C. Gibson, Jr. appeals from the final judgment of the district court1 after
he pleaded guilty to one count of conspiring to distribute and possess with intent to
distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; two
counts of possession with intent to distribute methamphetamine, in violation of 21
U.S.C. § 841(a)(1); one count of conspiring to commit money laundering, in violation
of 18 U.S.C. §§ 1956(a)(1)(B)(i) and (h); and four counts of money laundering, in
1
The Honorable Jean C. Hamilton, Chief Judge, United States District Court for
the Eastern District of Missouri.
violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2. Gibson also consented to two counts
of property forfeiture. The district court sentenced him to concurrent terms of 360
months imprisonment on his conspiracy and possession-with-intent-to-distribute counts,
and 240 months on his money laundering counts, to be followed by five years
supervised release. Counsel has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), arguing for reversal that the district court violated Gibson’s due process
rights by “failing to conduct an adequate factual finding” on whether Gibson’s
extraordinary physical impairment warranted a downward departure under U.S.
Sentencing Guidelines Manual § 5H1.4 (1997).
We reject counsel’s argument that the district court violated Gibson’s due
process rights. See United States v. Granados, No. 98-2488, 2000 WL 98630 at *2
(8th Cir. Jan. 31, 2000) (district court has discretion to determine appropriate procedure
in conducting sentencing hearing, including whether to receive additional evidence);
United States v. Carr, 66 F.3d 981, 983 (8th Cir. 1995) (per curiam) (due process
violation is established only if defendant shows district court relied on materially false
information as basis for challenged sentence). To the extent the due process argument
is actually an attack on the district court’s discretionary refusal to depart, such a
challenge is unreviewable. See United States v. Eagle, 133 F.3d 608, 611 (8th Cir.
1998) (district court’s discretionary refusal to depart downward under § 5H1.4 is not
reviewable).
After review of counsel’s Anders brief, along with our independent review of the
record in accordance with Penson v. Ohio, 488 U.S. 75, 80 (1988), we find no
nonfrivolous issues. Accordingly, we affirm the judgment of the district court.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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