United States v. Donald Andrew

Filing

PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Morris S. Arnold and Lavenski R. Smith (UNPUBLISHED); Granting [3903574-2] motion to withdraw as counsel filed by Mr.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]

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[Unpublished]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