United States v. Donald Andrew


PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Morris S. Arnold and Lavenski R. Smith (UNPUBLISHED); Granting [3903574-2] motion to withdraw as counsel filed by Mr. Daniel Stewart, subject to counsel informing appellant about procedures for seeking rehearing or filing a petition for certiorari. [3966555] [12-1452]

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 12-1452 ___________________________ United States of America lllllllllllllllllllll Appellee v. Donald Andrews lllllllllllllllllllll Appellant ____________ Appeal from United States District Court for the Western District of Arkansas - Ft. Smith ____________ Submitted: October 3, 2012 Filed: October 23, 2012 [Unpublished] ____________ Before MURPHY, ARNOLD, and SMITH, Circuit Judges. ____________ PER CURIAM. After Donald Andrews pleaded guilty to conspiring to distribute more than 50 grams of a mixture or substance containing methamphetamine, in violation of Appellate Case: 12-1452 Page: 1 Date Filed: 10/23/2012 Entry ID: 3966555 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii), and 846, the district court1 sentenced Mr. Andrews to the mandatory minimum of 60 months in prison and 5 years of supervised release. On appeal, counsel moves to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967). The district court correctly concluded that the 5-year statutory minimum sentence applied, based on the unobjected-to drug quantity recommended in the presentence report. See 21 U.S.C. § 841(b)(1)(B)(viii); United States v. Douglas, 646 F.3d 1134, 1137 (8th Cir. 2011) (if defendant objects only to presentence report’s recommendation, but not to facts themselves, court may accept facts as true). The court lacked discretion under the circumstances to sentence Mr. Andrews below the statutory minimum. See United States v. Watts, 553 F.3d 603, 604 (8th Cir. 2009). We have reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), and find no nonfrivolous issues for appeal. Accordingly, we affirm the 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. ______________________________ 1 The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas. -2- Appellate Case: 12-1452 Page: 2 Date Filed: 10/23/2012 Entry ID: 3966555

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