United States v. Earl M. Treadway

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3027
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Earl M. Treadway, * District of Nebraska.
* [UNPUBLISHED]
Appellant. *
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Submitted: May 14, 2002
Filed: May 20, 2002
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Before McMILLIAN, BOWMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
Earl M. Treadway pleaded guilty to bank robbery, in violation of 18 U.S.C.
§ 2113(a). The district court1 sentenced him to 72 months imprisonment and 3 years
supervised release. The court made the new prison term consecutive to Treadway’s
undischarged 36-month term for a prior bank robbery and concurrent with his
undischarged 60-month term for possessing a firearm during the prior bank robbery.
On appeal, Treadway’s counsel has filed a brief and moved to withdraw under Anders
v. California, 386 U.S. 738 (1967), and Treadway has filed a pro se supplemental
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The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.
brief and moved for appointment of substitute counsel. For the reasons discussed
below, we reject seriatim the arguments raised by Treadway and his counsel.
First, because the district court recognized its authority to depart on the ground
Treadway raised--extraordinary physical impairment--its discretionary decision not
to depart is unreviewable on appeal. See United States v. Lim, 235 F.3d 382, 385
(8th Cir. 2000). Second, the court did not abuse its discretion in deciding whether to
make the new sentence consecutive or concurrent. See United States v. Mayotte, 249
F.3d 797, 799 (8th Cir. 2001) (per curiam). Third, the court did not plainly err in
applying a weapon enhancement because it was entitled to rely on the unobjected-to
facts in the presentence report showing that Treadway possessed and displayed a
firearm during the bank robbery. See Fed. R. Crim. P. 32(b)(6)(D); United States v.
Rodamaker, 56 F.3d 898, 902 (8th Cir. 1995). Fourth, Treadway’s challenge to his
criminal history score fails because he misunderstands the definition of a “prior
sentence.” See U.S.S.G. § 4A1.2, comment. (n.1).
Fifth, Treadway was not entitled to sentence credit for the time he spent in
home confinement between his indictment and his conviction. See Starchild v. Fed.
Bureau of Prisons, 973 F.2d 610, 611 (8th Cir. 1992). Sixth, there is no indication
in the record that the government breached the plea agreement. Seventh, Treadway’s
claims of ineffective assistance of counsel should be presented, if at all, in a 28
U.S.C. § 2255 motion. See United States v. Clayton, 210 F.3d 841, 845 n.4 (8th Cir.
2000). Finally, we deny Treadway’s motion for appointment of new counsel.
After reviewing the record independently pursuant to Penson v. Ohio, 488 U.S.
75 (1988), we find no nonfrivolous issues for appeal. Accordingly, we affirm the
judgment of the district court, and we grant counsel’s motion to withdraw.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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