United States v. Perdis Cotton , 84 F. App'x 724 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2175
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Perdis Cotton, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 26, 2003
Filed: January 6, 2004
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Before BYE, BOWMAN, and MELLOY, Circuit Judges.
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PER CURIAM.
Perdis Cotton challenges the sentence the district court1 imposed after he
pleaded guilty to conspiring to distribute, and to possess with intent to distribute, 50
grams or more of a substance containing cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1), and 846. The district court granted Cotton a downward
departure under U.S.S.G. § 5G1.3(b), comment. (n.7), and sentenced him to 299
months imprisonment and 5 years supervised release. On appeal, Cotton’s counsel
1
The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.
has moved to withdraw under Anders v. California, 386 U.S. 738 (1967), arguing the
court erred in not granting a further downward departure based on Cotton’s
overstated criminal history.
The district court’s decision not to grant the downward departure was
discretionary; thus, the decision is unreviewable. See United States v. VanHouten,
307 F.3d 693, 696 (8th Cir. 2002) (discretionary decision not to depart from
Guidelines is unreviewable on appeal absent unconstitutional motive, unless district
court erroneously concluded it lacked authority to depart).
Following careful review of the record, we find no other nonfrivolous issues.
See Penson v. Ohio, 488 U.S. 75, 80 (1988). Accordingly, the judgment is affirmed.
We also grant counsel’s motion to withdraw.
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