United States v. Tony Reynolds ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3469
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Tony Shannell Reynolds, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 22, 2005
Filed: July 5, 2005
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Before SMITH, FAGG, and MAGILL, Circuit Judges.
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PER CURIAM.
Tony Reynolds appeals from the sentence the district court1 imposed after he
pleaded guilty to conspiring to distribute 500 grams but less than 1.5 kilograms of a
mixture containing cocaine base, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1), and
846. The district court sentenced Reynolds to 260 months imprisonment and 5 years
supervised release, and on appeal, Reynolds’s counsel moved to withdraw and filed
a brief under Anders v. California, 386 U.S. 738 (1967), arguing that Reynolds’s
sentence is extreme. Reynolds has filed a pro se supplemental brief in which he
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
makes reference to Blakely v. Washington, 124 S. Ct. 2531 (2004), and appears to
assert that his criminal history category overrepresents the seriousness of his past
conduct and that the district court erroneously considered his failure to appear at his
original sentencing hearing in imposing the instant sentence. We reject all of the
foregoing arguments and affirm.
The Anders brief argument, which we construe as an Eighth Amendment
challenge, fails. Cf. Harmelin v. Michigan, 501 U.S. 957, 961, 994-95 (1991) (state
sentence of mandatory life imprisonment without possibility of parole for possessing
672 grams of cocaine did not violate Eighth Amendment); United States v. Prior, 107
F.3d 654, 659-60 (8th Cir.) (finding no Eighth Amendment violation for defendant’s
“harsh” life sentence following guilty plea to methamphetamine offense), cert.
denied, 522 U.S. 824 (1997).
The pro se arguments also fail. First, the district court properly could consider
Reynolds’s failure to appear at his original sentencing hearing in determining an
appropriate sentence. See 18 U.S.C. § 3661 (in determining appropriate sentence to
impose, court may consider information concerning background, character, and
conduct of defendant); U.S.S.G. § 1B1.4 (same). Second, Reynolds did not raise any
issue below regarding the propriety of his criminal history category and the district
court did not plainly err in not doing so sua sponte. See United States v. Montanye,
996 F.2d 190, 192 (8th Cir. 1993) (en banc) (standard of review for issues not raised
below is plain error). Third, Reynolds’s Blakely challenge is unavailing because he
stipulated to the drug quantity on which he was sentenced and nothing in the record
suggests he would have received a more favorable sentence under an advisory
Guidelines scheme. See United States v. Booker, 125 S. Ct. 738, 756-57, 764-65
(2005); United States v. Pirani, 406 F.3d 543, 549-53 (8th Cir. 2005) (en banc)
(preservation of Booker error; plain error standard of review).
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Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75(1988), we find no nonfrivolous issues.
Accordingly, we affirm, and we grant counsel’s motion to withdraw.
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