United States v. Michael Ed Brewer ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-2337
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Michael Ed Brewer, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 1, 2000
Filed: June 5, 2000
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Before WOLLMAN, Chief Judge, BOWMAN, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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PER CURIAM.
Pursuant to a written plea agreement, Michael Ed Brewer pleaded guilty to one
count of distributing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (1994),
and to one count of being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (1994). The District Court1 sentenced him to 121 months imprisonment
and 3 years supervised release. We affirmed Brewer’s sentence on appeal. See United
States v. Brewer, 141 F.3d 1170 (8th Cir. 1998) (unpublished per curiam). The
1
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
government later filed a motion to reduce Brewer’s sentence pursuant to Federal Rule
of Criminal Procedure 35(b). The District Court granted the government’s motion, and
resentenced Brewer to 78 months imprisonment and three years supervised release.
On appeal, counsel moved to withdraw pursuant to Anders v. California, 386
U.S. 738 (1967), and although we granted Brewer permission to file a pro se
supplemental brief, he has not done so. We conclude counsel’s Anders-brief arguments
that Brewer’s original sentence violated the plea agreement, and was too harsh in light
of the disparity between it and a co-defendant’s sentence, are unavailing. Brewer is not
entitled in this appeal to raise issues he could have raised in a direct criminal appeal
following his conviction and original sentencing. See Goff v. United States, 965 F.2d
604, 605 (8th Cir. 1992) (per curiam); cf. United States v. Kress, 58 F.3d 370, 373 (8th
Cir. 1995) (where party could have raised issue in prior appeal but did not, court later
hearing same case need not consider matter).
Upon review of the record in accordance with Penson v. Ohio, 488 U.S. 75, 80
(1988), we have found no other nonfrivolous issues. Accordingly, we grant counsel’s
motion to withdraw and affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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