United States v. Mary Ann Turner , 178 F. App'x 600 ( 2006 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 04-4185
    ___________
    United States of America,           *
    *
    Appellee,                 *
    *
    v.                             * Appeal from the United States
    * District Court for the
    Mary Ann Turner, also known as      * Northern District of Iowa.
    Mary Ann Vlazny,                    *
    *      [UNPUBLISHED]
    Appellant.                *
    ___________
    Submitted: April 25, 2006
    Filed: April 27, 2006
    ___________
    Before RILEY, MAGILL, and GRUENDER, Circuit Judges.
    ___________
    PER CURIAM.
    Mary Ann Turner (Turner) pled guilty to possessing methamphetamine after
    having been convicted of a felony drug offense, in violation of 21 U.S.C. §§ 844(a)
    and 851 (Count 1); and possessing pseudoephedrine knowing it would be used to
    manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2) (Count 2). In
    December 2004, the district court1 sentenced Turner to concurrent prison terms of 24
    months (the statutory maximum) on Count 1 and 71 months on Count 2 (which had
    1
    The Honorable Linda R. Reade, United States District Judge for the Northern
    District of Iowa.
    a Guidelines range of 57-71 months). “[I]n its discretion” and “after consideration of
    the [18 U.S.C. § 3553(a)] factors,” the court pronounced an identical alternative
    sentence in the event the Guidelines were later found to be unconstitutional. On
    appeal, Turner’s counsel moved to withdraw and filed a brief under Anders v.
    California, 
    386 U.S. 738
    (1967), and Turner filed a pro se supplemental brief. We
    reject their arguments for the reasons discussed below.
    First, in light of Turner’s sworn statements at her change-of-plea hearing, we
    see no reason to doubt the validity of her guilty plea. See Blackledge v. Allison, 
    431 U.S. 63
    , 74 (1977) (“Solemn declarations in open court carry a strong presumption of
    verity.”). Second, sentencing on the basis of admitted drug quantities and a prior
    felony drug conviction does not result in a Sixth Amendment violation. See United
    States v. Alvarado-Rivera, 
    412 F.3d 942
    , 946 n.3 (8th Cir. 2005) (en banc) (drug
    quantity), cert. denied, 
    126 S. Ct. 1096
    (2006); United States v. Torres-Alvarado, 
    416 F.3d 808
    , 810 (8th Cir. 2005) (prior conviction). Third, Turner is not entitled to
    plain-error relief for erroneous sentencing under a mandatory Guidelines scheme,
    because–given the identical alternative discretionary sentence announced–the record
    does not establish a reasonable probability that the district court would have imposed
    a more favorable sentence under advisory Guidelines. See United States v. Booker,
    
    543 U.S. 220
    , 233-37, 245, 258-59 (2005); United States v. Pirani, 
    406 F.3d 543
    , 550-
    54 (8th Cir.) (en banc), cert. denied, 
    126 S. Ct. 266
    (2005). Fourth, the sentence,
    which was at the top of the Guidelines range, was not unreasonable: the district court
    stated it had considered the section 3553(a) factors, and we see nothing in the record
    to rebut the presumption of reasonableness arising from a sentence within the advisory
    Guidelines range. See 
    Booker, 543 U.S. at 261-62
    ; United States v. Lincoln, 
    413 F.3d 716
    , 717-18 (8th Cir.), cert. denied, 
    126 S. Ct. 840
    (2005).
    As to the remaining arguments, the district court did not err in declining to
    credit Turner for jail time served on a related pending state charge, see United States
    v. Wilson, 
    503 U.S. 329
    , 331-37 (1992) (18 U.S.C. § 3585(b) credit is computed by
    -2-
    Attorney General rather than district court), in not recommending placement at the
    prison facility Turner requested, see 18 U.S.C. § 3621(b) (“The Bureau of Prisons
    shall designate the place of the prisoner’s imprisonment.”), or in denying self-
    surrender or furlough in the absence of exceptional circumstances, see 18 U.S.C.
    § 3143(a)(1), (b)(1), and § 3145(c); and any ineffective-assistance claim should be
    raised in a 28 U.S.C. § 2255 proceeding, see United States v. Hughes, 
    330 F.3d 1068
    ,
    1069 (8th Cir. 2003).
    Having reviewed the record independently under Penson v. Ohio, 
    488 U.S. 75
    ,
    80 (1988), we find no other nonfrivolous issue. Accordingly, we affirm the judgment,
    and grant counsel’s motion to withdraw.
    ______________________________
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