United States v. Gary Brook

Filing

PER CURIAM OPINION FILED - THE COURT: RAYMOND W. GRUENDER, DUANE BENTON and MICHAEL J. MELLOY (UNPUBLISHED) [3772988] [10-3382]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-3382
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United States of America,
Appellee,
v.
Gary Lee Brooks,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* Northern District of Iowa.
*
* [UNPUBLISHED]
*
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Submitted: March 22, 2011
Filed: April 4, 2011
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Before MELLOY, GRUENDER, and BENTON, Circuit Judges.
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PER CURIAM.
Gary Brooks pleaded guilty to conspiring to distribute actual methamphetamine
and possessing with intent to distribute a methamphetamine mixture, both within
1,000 feet of a public playground, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
(B), 846, and 860(a). The district court1 sentenced him to the statutory minimum
prison term of 120 months. Brooks appeals. His counsel has filed a brief under
Anders v. California, 386 U.S. 738 (1967), raising the argument that the government

1

The Honorable Donald E. O’Brien, United States District Judge for the
Northern District of Iowa.

Appellate Case: 10-3382

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Date Filed: 04/04/2011 Entry ID: 3772988

acted in bad faith in refusing to move under 18 U.S.C. § 3553(e) for a sentence
reduction based on substantial assistance.
The challenge to the sentence is unavailing: there is no indication in the record
that the government’s decision not to move for a sentence reduction was improper.
See United States v. Wattree, 431 F.3d 618, 624 (8th Cir. 2005) (so long as
government’s refusal to file substantial-assistance motion is not motivated by bad
faith or unconstitutional motive, court cannot order government to file motion);
United States v. Chacon, 330 F.3d 1065, 1066 (8th Cir. 2003) (only authority for
district court to depart from statutory minimum sentence is found in 18 U.S.C.
§ 3553(e) and (f), applicable only when government makes substantial-assistance
motion or defendant qualifies for safety-valve relief); United States v. Mendoza, 876
F.2d 639, 641 (8th Cir. 1989) (mandatory minimum sentencing does not violate
defendant’s constitutional rights).
Having independently reviewed the record under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues. Accordingly, we affirm.
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Date Filed: 04/04/2011 Entry ID: 3772988