United States v. Rayvell Vann , 103 F. App'x 40 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3195
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Rayvell Vann, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 4, 2004
Filed: June 10, 2004
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Before MORRIS SHEPPARD ARNOLD, FAGG, and SMITH, Circuit Judges.
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PER CURIAM.
Rayvell Vann challenges the sentence the district court1 imposed upon his
guilty plea to conspiring to commit bank fraud, in violation of 18 U.S.C. §§ 371 and
1344. On appeal, his counsel has moved to withdraw and has filed a brief under
Anders v. California, 386 U.S. 738 (1967).
At sentencing, over Vann’s objection, the district court added 3 levels to
Vann’s offense level for being a manager or supervisor of criminal activity involving
1
The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.
5 or more participants. See U.S.S.G. § 3B1.1(b). Vann’s total offense level of 18
resulted in a Guidelines imprisonment range of 57-71 months. After granting the
government’s substantial-assistance downward-departure motion, the district court
sentenced Vann to 36 months imprisonment and 5 years supervised release, and
ordered him to pay restitution. On appeal Vann argues that the district court
erroneously applied the aggravating-role enhancement.
We conclude that the issue is unreviewable, however, because Vann’s
departure sentence is below the applicable Guidelines range, with or without the
enhancement. See United States v. Baker, 64 F.3d 439, 441 (8th Cir. 1995)
(challenge to enhancement unreviewable where defendant received sentence below
applicable Guidelines range with or without enhancement); United States v. Wyatt,
26 F.3d 863, 864 (8th Cir. 1994) (per curiam) (challenge to enhancement
unreviewable where sentence was downward departure from Guidelines range that
would have resulted if defendant had prevailed); United States v. Dutcher, 8 F.3d 11,
12-13 (8th Cir. 1993) (extent of downward departure unreviewable regardless of
district court’s reasons for refraining from departing further; rejecting argument that
allegedly erroneous Guidelines “starting point” caused court to depart insufficiently).
Having found no nonfrivolous issues after reviewing the record independently
under Penson v. Ohio, 488 U.S. 75 (1988), we affirm. We also grant counsel’s
motion to withdraw.
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