United States v. Melvin Johnson

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-2050
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Melvin R. Johnson, also known *
as Melvyn R. Johnson, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: April 18, 2008
Filed: May 21, 2008
___________
Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
Melvin R. Johnson appeals the 120-month prison sentence the district court1
imposed after he pleaded guilty to possessing with intent to distribute 50 grams or
more of cocaine base and distributing a cocaine-base mixture, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(A) and (C). Johnson’s counsel has requested leave to
withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967),
1
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
arguing that the district court erred in determining Johnson was ineligible for safety-
valve relief and in sentencing Johnson to the mandatory minimum.
We conclude that the district court did not clearly err in denying Johnson
safety-valve relief under 18 U.S.C. § 3553(f)(2) and USSG § 5C1.2(a)(2). See United
States v. Warford, 439 F.3d 836, 844 (8th Cir. 2006) (standard of review). The court
found that Johnson failed to show that he did not use violence or credible threats of
violence in connection with the offense, because Johnson “resisted arrest to the point
that he had to be tasered and was told to stop and continued to resist, even after being
told to stop.” (S. Tr. 25). This record is sufficient to support the court’s
determination. Consequently, we conclude that Johnson’s sentence, the statutory
minimum, is not unreasonable. See United States v. Gregg, 451 F.3d 930, 937 (8th
Cir. 2006).
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues. Accordingly, we affirm. We grant counsel
leave to withdraw, subject to the condition that counsel promptly comply with the
requirements of Part V of this Court’s Plan to Implement the Criminal Justice Act by
advising Johnson of the procedures for filing a petition for writ of certiorari pro se.
______________________________
-2-