United States v. Gregory Neeman ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-1666
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Gregory A. Neeman,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 8, 2022
Filed: November 28, 2022
[Unpublished]
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Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
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PER CURIAM.
Gregory Neeman pleaded guilty to drug trafficking offenses, and the district
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court sentenced him to 180 months in prison. On Neeman’s appeal, his counsel has
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The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.
moved to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738(1967), challenging the application of a sentencing enhancement under 21 U.S.C.
§ 851. Neeman has filed a pro se brief raising additional challenges, and has
requested new counsel on appeal.
We conclude that Neeman’s prior drug conviction met the relevant criteria for
an enhancement under § 851, including that Neeman was released from prison within
fifteen years of the commencement of the instant offense. See 21 U.S.C. § 802(57);
18 U.S.C. § 924(e)(2). Contrary to counsel’s argument, Neeman’s supervised release
term was properly counted as part of the original sentence, see United States v.
Wilson, 939 F.3d 929, 931-32 (8th Cir. 2019), and in any event, the record shows that
Neeman was originally released within the relevant period.
As to Neeman’s pro se arguments, we conclude that the district court’s
drug-quantity determination was not clearly erroneous, and that the court reasonably
credited a detective’s testimony over Neeman’s. See United States v. Moore, 212
F.3d 441, 446 (8th Cir. 2000); United States v. Karam, 37 F.3d 1280, 1286 (8th Cir.
1993). Neeman asserts for the first time on appeal that his rights were violated under
Brady v. Maryland, 373 U.S. 83 (1963), because the detective “altered” the original
police report regarding drug quantity, and because the video of the search of his car
had been lost. We see no plain error. The detective testified about revisions to his
report that occurred during process of dictation and typing, and he was subject to
cross-examination about them. Neeman fails to explain how the disputed video
evidence would have been favorable to him. See United States v. Shepard, 462 F.3d
847, 870 (8th Cir. 2006); United States v. Stuart, 150 F.3d 935, 937 (8th Cir. 1998).
By pleading guilty, Neeman waived his claims that the government’s filing of the §
851 notice was retaliatory, and that his rights under Miranda v. Arizona, 384 U.S. 436(1966), were violated. See United States v. Muratella, 843 F.3d 780, 783 (8th Cir.
2016). Any claim of ineffective assistance of counsel should be raised in a collateral
proceeding under 28 U.S.C. § 2255.
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We have independently reviewed the record under Penson v. Ohio, 488 U.S.
75 (1988), and we find no non-frivolous issues for appeal. Accordingly, we affirm,
grant counsel’s motion to withdraw, and deny Neeman’s request for new counsel.
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