United States v. Marco Whitley, Sr.

United States Court of Appeals
For the Eighth Circuit
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No. 16-1579
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Marco D. Whitley, Sr.
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: October 25, 2016
Filed: November 14, 2016
[Unpublished]
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Before LOKEN, BOWMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
Marco Whitley appeals after he pleaded guilty to being a felon in possession
of a firearm and the District Court1 varied upward, sentencing him to an above-
1
The Honorable Greg Kays, Chief Judge, United States District Court for the
Western District of Missouri.
Guidelines-range prison term. His counsel has moved for leave to withdraw and has
filed a brief under Anders v. California, 386 U.S. 738 (1967), challenging the denial
of a motion to suppress and the application of a sentencing enhancement that
increased the calculated Guidelines imprisonment range. Whitley has filed a pro se
brief arguing that the court erred by varying upward without notice, which he claims
was required under Rule 32(h) of the Federal Rules of Criminal Procedure. He has
also moved for appointment of counsel.
We conclude that counsel’s first argument challenging the denial of the
suppression motion asserts a non-jurisdictional defect or error that was waived by
Whitley’s valid guilty plea. See United States v. Staples, 435 F.3d 860, 864 (8th Cir.)
(noting that a defendant waives all non-jurisdictional defects or errors by entering a
valid guilty plea), cert. denied, 549 U.S. 862 (2006); United States v. Stewart, 972
F.2d 216, 218 (8th Cir. 1992) (declining to consider the denial of a suppression
motion where the defendant entered a guilty plea). We further conclude there is no
merit to Whitley’s pro se argument because Rule 32(h) requires notice for a departure,
not for a variance. See Fed. R. Crim. P. 32(h) (stating that a court “must give the
parties reasonable notice” before it may depart from the applicable sentencing range);
United States v. Foy, 617 F.3d 1029, 1035 (8th Cir. 2010) (“As the district court
correctly noted, however, it was not required to provide advance notice of its intent
to vary upwardly.”), cert. denied, 562 U.S. 1236 (2011).
As to counsel’s second argument, we conclude that any error in applying the
sentencing enhancement was harmless in light of the District Court’s statement at the
sentencing hearing that it would have imposed the same sentence even if it had
sustained all of Whitley’s objections. We note that this was the only objection
substantively discussed at the sentencing hearing; that the addendum to the
presentence investigation report clearly and accurately reported what the alternative
Guidelines range would have been if the court had sustained the objection; and that
the court discussed the § 3553(a) factors, indicating that it believed the sentence
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imposed was appropriate regardless of the applicable Guidelines range. See
Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016) (noting that an error
in calculating a Guidelines range may not result in “a reasonable probability of
prejudice” where the record demonstrates “that the district court thought the sentence
it chose was appropriate irrespective of the Guidelines range”).
Finally, we have independently reviewed the record under Penson v. Ohio, 488
U.S. 75, 80 (1988), and have found no nonfrivolous issues for appeal. The judgment
is affirmed, counsel’s motion to withdraw is granted, and Whitley’s motion for
appointment of counsel is denied as moot.
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