United States v. Tremayne Scoggins , 267 F. App'x 479 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-4152
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Tremayne Scoggins, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 19, 2008
Filed: March 5, 2008
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Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Tremayne Scoggins was found guilty by a jury of conspiring to distribute and
possess with intent to distribute more than 5 kilograms of cocaine and more than 50
grams of cocaine base, and using a telephone to facilitate the commission of a drug
crime. He appeals the 360-month prison sentence the district court1 imposed after this
court affirmed his conviction and remanded his case for resentencing in light of
United States v. Booker, 543 U.S. 220 (2005). Counsel has requested leave to
withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
that Scoggins’s sentence is unreasonable and violates the Eighth Amendment’s cruel
and unusual punishment clause. In addition, Scoggins raises a multitude of arguments
in pro se supplemental briefs. Upon review, we affirm.
To begin, we conclude that the district court correctly determined Scoggins’s
advisory Guidelines range and did not abuse its discretion in sentencing him below
his Guidelines range after appropriately considering the sentencing factors in 18
U.S.C. § 3553(a). See Gall v. United States, 128 S. Ct. 586, 596-97 (2007) (appellate
court must review sentence under abuse-of-discretion standard regardless of whether
sentence imposed is inside or outside Guidelines range); United States v. Haack, 403
F.3d 997, 1002-03 (8th Cir. 2005) (once sentencing court determines appropriate
Guidelines range, it must then consider all other § 3553(a) factors to determine
whether to impose Guidelines sentence). We also conclude that counsel’s Eighth
Amendment argument is without merit. See United States v. Collins, 340 F.3d 672,
680 (8th Cir. 2003) (sentence within statutory range has never been found to be Eighth
Amendment violation).
As to Scoggins’s pro se arguments, we conclude that there is no basis for his
assertions of Booker error. We further conclude that Scoggins was not prejudiced by
the sentencing disparity between offenses involving cocaine and cocaine base because
he was indicted, convicted, and sentenced for conspiring to distribute and possess 5
kilograms of cocaine--the equivalent of 50 grams of cocaine base for sentencing
purposes, see 21 U.S.C. § 841(b)(1)(A)--as well as 50 grams of cocaine base. We do
not consider Scoggins’s arguments related to the jury’s findings, which were outside
the scope of this court’s limited remand. See United States v. Kendall, 475 F.3d 961,
964 (8th Cir.) (scope-of-remand doctrine limits resentencing court’s authority to
decide issues; scope of remand determined by analysis contained in opinion), cert.
denied, 127 S. Ct. 2954 (2007). We also do not consider Scoggins’s claims of
ineffective assistance of counsel. See United States v. Hughes, 330 F.3d 1068, 1069
(8th Cir. 2003) (ineffective-assistance claims should ordinarily be brought in 28
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U.S.C. § 2255 proceeding because they normally involve facts outside original
record).
Finally, having reviewed the record under Penson v. Ohio, 488 U.S. 75, 80
(1988), we find no nonfrivolous issues. Accordingly, we affirm the district court’s
judgment and grant counsel’s request to withdraw on condition that counsel inform
appellant about the procedures for filing petitions for rehearing and for certiorari.
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