United States v. Kelly Mitchell

United States Court of Appeals
For the Eighth Circuit
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No. 19-2544
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Kelly Everett Mitchell
lllllllllllllllllllllDefendant - Appellant
___________________________
No. 19-2545
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Kelly Everett Mitchell
lllllllllllllllllllllDefendant - Appellant
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Appeals from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: April 16, 2020
Filed: April 21, 2020
[Unpublished]
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Before LOKEN, ERICKSON, and STRAS, Circuit Judges.
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PER CURIAM.
In these consolidated appeals, Kelly Mitchell appeals the sentence imposed by
the district court1 after he pleaded guilty to drug offenses in two separate cases--
instituted by separate indictments--which were consolidated prior to the sentencing
hearing. His counsel has filed a brief under Anders v. California, 386 U.S. 738
(1967), challenging the sentence. Mitchell has filed a pro se brief.
Upon careful review, we conclude that the district court did not err in
determining the quantity and purity of methamphetamine attributable to Mitchell. See
United States v. Sheridan, 859 F.3d 579, 583 (8th Cir. 2017) (in resolving disputed
issues of fact at sentencing, court may consider relevant information without regard
to its admissibility under rules of evidence applicable at trial, provided information
has sufficient indicia of reliability to support its probable accuracy) (quotations and
citation omitted); United States v. Long, 532 F.3d 791, 796 (8th Cir. 2008) (the
government may prove the total quantity of actual methamphetamine in a series of
transactions by testing the purity of a seized quantity and applying the percentage of
actual methamphetamine in the tested quantity to the unrecovered quantities).
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
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We further conclude that the district court did not impose a substantively
unreasonable sentence, as the court properly considered the factors listed in 18 U.S.C.
§ 3553(a), did not err in weighing the relevant factors, and imposed a sentence within
the Guidelines range. See United States v. Feemster, 572 F.3d 455, 461-62 (8th Cir.
2009) (sentences are reviewed for substantive reasonableness under deferential abuse
of discretion standard; abuse of discretion occurs when court fails to consider relevant
factor, gives significant weight to improper or irrelevant factor, or commits clear error
of judgment in weighing appropriate factors); see also United States v. Callaway, 762
F.3d 754, 760 (8th Cir. 2014) (on appeal, within-Guidelines-range sentence may be
presumed reasonable).
To the extent Mitchell attempts to assert ineffective assistance of counsel, we
decline to address the claim in this direct appeal. See United States v. Hernandez,
281 F.3d 746, 749 (8th Cir. 2002) (generally, ineffective-assistance claim is not
cognizable on direct appeal).
We have also independently reviewed the record under Penson v. Ohio, 488
U.S. 75 (1988), and we find no non-frivolous issues for appeal. Accordingly, we
affirm.
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