United States v. Tramain Whiting

Filing

PER CURIAM OPINION FILED - THE COURT: DIANA E. MURPHY, MORRIS S. ARNOLD and DUANE BENTON (UNPUBLISHED) [3663332] [08-2535]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 08-2535
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United States of America,
Appellee,
v.
Tramain M. Whiting,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* Northern District of Iowa.
*
* [UNPUBLISHED]
*
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Submitted: May 7, 2010
Filed: May 11, 2010
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Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
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PER CURIAM.
Tramain Whiting appeals the sentence imposed by the district court1 following
our remand for consideration of retroactive Guidelines amendments relating to crack
cocaine. His counsel has moved to withdraw and has filed a brief under Anders v.
California, 368 U.S. 738 (1967), arguing that the district court erred in not reducing
Whiting’s base offense level by the same 3 levels that the court reduced it during the
original sentencing under U.S.S.G. § 2D1.1(a)(3) (2006) (providing for varying

1

The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

Appellate Case: 08-2535

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Date Filed: 05/11/2010 Entry ID: 3663332

reductions if defendant has base offense level of 32, 34, 36, or 38, and receives
mitigating role reduction under U.S.S.G. § 3B1.2).
We review the district court’s Guidelines calculations de novo. See United
States v. Yah, 500 F.3d 698, 702 (8th Cir. 2007). On remand, the district court
applied Amendment 715, which became effective on May 1, 2008. Under that
amendment, Whiting’s offense level--based on a marijuana equivalency for the crack
cocaine, powder cocaine, and marijuana attributed to him--was reduced from level 34
to level 32. See U.S.S.G. App. C Supp., Amend. 715. Because the recalculated
offense level was 32, the district court calculated a 2-level rather than 3-level
reduction. See U.S.S.G. § 2D1.1(a)(3) (if defendant is entitled to § 3B1.2 reduction,
reduce base offense level of 32 by 2 levels, base offense level of 34 or 36 by 3 levels,
and base offense level of 38 by 4 levels). We find no error in the district court’s
Guidelines calculations.
Further, after reviewing the record independently under Penson v. Ohio, 488
U.S. 75 (1988), we have found no nonfrivolous issues for appeal. Accordingly, we
affirm the amended judgment of the district court, and we grant counsel’s motion to
withdraw, subject to counsel informing appellant about procedures for seeking
rehearing or filing a petition for certiorari.
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Date Filed: 05/11/2010 Entry ID: 3663332