United States v. Oscar Bradshaw

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3240
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Oscar Bradshaw, III, also known as *
O.B., * [UNPUBLISHED]
*
Appellant. *
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Submitted: October 16, 2007
Filed: October 17, 2007
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Before BYE, RILEY, and MELLOY, Circuit Judges.
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PER CURIAM.
Oscar Bradshaw appeals the 33-month prison sentence the district court1
imposed after he pleaded guilty to using a communication facility to facilitate delivery
of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 843(b). In a brief filed
under Anders v. California, 386 U.S. 738 (1967), Bradshaw’s counsel challenges both
the district court’s denial of a downward departure based on an overstated criminal
1
The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
history, and the overall reasonableness of Bradshaw’s sentence. Counsel also moves
to withdraw.
We conclude that the district court’s decision not to depart downward is
unreviewable because, as revealed by the court’s comments at sentencing, the court
was aware of its authority to depart but elected not to do so under the circumstances.
See United States v. Morell, 429 F.3d 1161, 1164 (8th Cir. 2005) (discretionary denial
of downward departure remains unreviewable after United States v. Booker, 543 U.S.
220 (2005)); United States v. Koons, 300 F.3d 985, 993-94 (8th Cir. 2002) (where
district court recognized authority to depart but elected not to do so under
circumstances, decision is unreviewable).
We further conclude that Bradshaw’s 33-month prison sentence, representing
a 4-month downward variance from the applicable Guidelines imprisonment range,
is not unreasonable. Cf. United States v. Wadena, 470 F.3d 735, 737 (8th Cir. 2006)
(appellate court reviews sentence, including any downward variance, for
reasonableness, which requires reviewing court to ask whether district court abused
its discretion). The record shows that the district court appropriately considered the
18 U.S.C. § 3553(a) factors. See Booker, 543 U.S. at 260-62 (§ 3553(a) will guide
appellate courts in determining whether sentence is unreasonable). Moreover, nothing
in the record suggests that the district court based Bradshaw’s sentence on an
improper or irrelevant factor, failed to consider a relevant factor, or made a clear error
of judgment in weighing appropriate factors. See United States v. Haack, 403 F.3d
997, 1004 (8th Cir. 2005).
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues. Accordingly, we grant counsel leave to
withdraw, and we affirm.
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