United States v. Donald Lee Bowers

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2252
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Donald Lee Bowers, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 31, 2006
Filed: June 2, 2006
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Before MELLOY, FAGG, and BENTON, Circuit Judges.
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PER CURIAM.
Donald Bowers pleaded guilty to conspiring to distribute and possess with
intent to distribute methamphetamine, in violation of 21 U.S.C. § 846, and being a
felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2).
Having determined that the advisory Sentencing Guidelines imprisonment range was
135-168 months for the drug offense and 120 months (the statutory maximum) for the
firearm offense, the district court1 imposed concurrent prison terms of 135 months
and 120 months. Bowers appeals, arguing in a brief filed under Anders v. California,
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
386 U.S. 738 (1967), that the court abused its discretion in denying his motion for
downward departure or deviation from the Guidelines range.
The district court’s decision not to exercise its authority to depart downward
is unreviewable. See United States v. Morell, 429 F.3d 1161, 1164 (8th Cir. 2005)
(district court’s decision not to depart downward is not reviewable under 18 U.S.C.
§ 3742); United States v. Dabney, 367 F.3d 1040, 1044 (8th Cir. 2004) (district
court’s refusal to grant downward departure is generally unreviewable on appeal,
unless district court had unconstitutional motive or erroneously believed that it was
without authority to grant departure). Further, Bowers has not satisfied his burden
to rebut the presumption that his sentences are reasonable. See United States v.
Lincoln, 413 F.3d 716, 717-18 (8th Cir.) (sentence within applicable Guidelines range
is presumptively reasonable and burden is on defendant to rebut that presumption),
cert. denied, 126 S. Ct. 840 (2005); United States v. Haack, 403 F.3d 997, 1004 (8th
Cir.) (standard of review), cert. denied, 126 S. Ct. 276 (2005).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we find no nonfrivolous issues. Accordingly, we affirm.
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