United States v. Franklin H. Rorebeck

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3407
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Franklin Howard Rorebeck, also known * District of Nebraska.
as Frank White, *
* [UNPUBLISHED]
Appellant. *
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Submitted: July 6, 2006
Filed: July 10, 2006
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Before RILEY, MAGILL, and GRUENDER, Circuit Judges.
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PER CURIAM.
Franklin H. Rorebeck pleaded guilty to conspiring to distribute and possess
with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841 and 846.
The district court1 sentenced him to 210 months in prison and 5 years of supervised
release. On appeal, in a brief filed pursuant to Anders v. California, 386 U.S. 738
(1967), counsel challenges the district court’s denial of a downward departure from
the advisory Guidelines range based on Rorebeck’s overstated criminal history. The
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
district court’s decision is unreviewable because the court acknowledged its authority
to depart, and nothing in the record indicates the court’s refusal was based upon an
unconstitutional motive. See United States v. Morell, 429 F.3d 1161, 1164 (8th Cir.
2005) (following United States v. Booker, 543 U.S. 220 (2005), district court’s
discretionary decision not to depart downward is still 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 it was
without authority to grant departure).
Having independently reviewed the entire record in accordance with Penson v.
Ohio, 488 U.S. 75 (1988), and finding no nonfrivolous issues, we affirm the judgment
of the district court. Counsel’s motion to withdraw is granted.
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