United States v. Anthony R. West

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-2254
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Anthony R. West, * [UNPUBLISHED]
*
Appellant. *
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Submitted: April 5, 2002
Filed: April 11, 2002
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Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Anthony West appeals his conviction, upon his guilty plea, for conspiracy to
distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A), and 846. The district court1 departed downward and sentenced him to 120
months in prison and 5 years of supervised release. West’s counsel was granted leave
to withdraw after West indicated he wished to proceed pro se, and West raises several
claims on appeal.
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
We conclude that West’s appeal is meritless. His involuntary-plea claims are
not properly before us because he did not move to withdraw his guilty plea in the
district court. See United States v. Murphy, 899 F.2d 714, 716 (8th Cir. 1990). Also,
West waived his claim that he should not have been sentenced as a career offender
when he conceded the issue in the district court, see United States v. Gutierrez, 130
F.3d 330, 332 (8th Cir. 1997), and in any event, because of the downward departure
he was sentenced below the range that would have applied without the career-
offender enhancement, see United States v. Wyatt, 26 F.3d 863, 864 (8th Cir. 1994)
(per curiam). West also waived his constitutional challenge to section 841 by failing
to raise it in the district court, see United States v. Baker, 98 F.3d 330, 337-38 (8th
Cir. 1996), cert. denied, 520 U.S. 1179 (1997), and his ineffective-assistance claim
is not properly presented in this proceeding, see United States v. Cain, 134 F.3d 1345,
1352 (8th Cir. 1998). Further, the district court did not have the authority to run his
sentence concurrent with any revocation sentence the Parole Commission may impose
on a prior federal conviction for which he had been paroled at the time he committed
the instant offense, see U.S.S.G. § 5G1.3, comment. (n.6); United States v. Murphy,
69 F.3d 237, 245 (8th Cir. 1995), cert. denied, 516 U.S. 1153 (1996).
As to West’s remaining arguments, he did not raise the issues in the district
court, and thus may not raise them on appeal absent plain error. See United States v.
Eads, 144 F.3d 1151, 1154 (8th Cir. 1998). We find no error, plain or otherwise: the
government did not breach the plea agreement, and the district court quite clearly
ruled on the motion for a downward departure after listening to the parties’ arguments
for departure.
Accordingly, we affirm the sentence. We deny the government’s motion to
dismiss the appeal.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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