United States v. Robert Martin , 160 F. App'x 543 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-4077
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Robert Martin, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 7, 2005
Filed: December 20, 2005
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Before MELLOY, HANSEN, and GRUENDER, Circuit Judges.
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PER CURIAM.
Robert Martin appeals the 120-month sentence the district court1 imposed after
granting the government’s Federal Rule of Criminal Procedure 35(b) motion to
reduce Martin’s sentence for his post-sentencing substantial assistance. His counsel
has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738
(1967), arguing that (1) the government breached its promise to advocate for a
substantial reduction, and (2) the district court erred by focusing on Martin’s criminal
history, as opposed to his assistance, in determining the amount of the departure. In
1
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
his pro se supplemental brief, Martin raises issues concerning his original sentencing,
and argues further that the government breached its promise to give him 5 years off
his sentence for testifying, that he received a lesser reduction than a defendant who
had provided the same assistance, and that his sentence is unreasonable under United
States v. Booker, 125 S. Ct. 738 (2005). Martin also requests appointment of counsel.
Initially, we note that Martin may not in this appeal 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). Further,
Martin’s argument concerning the extent of the departure is unreviewable. See
United States v. Noe, 411 F.3d 878, 885 (8th Cir.), cert. denied, 126 S. Ct. 184
(2005); cf. United States v. Williams, 324 F.3d 1049, 1050 (8th Cir. 2003) (per
curiam) (refusal to depart is not reviewable unless defendant makes substantial
showing that court’s decision was based on unconstitutional motive).
As to Martin’s arguments concerning the government’s advocacy at the Rule
35(b) hearing, nothing in the record suggests the government promised to advocate
for any particular sentence at the Rule 35 hearing, or that the government promised
Martin he would receive a 5-year sentence reduction for his assistance. We also find
that the sentence is not unreasonable. See United States v. Booker, 125 S. Ct. 738,
765-66 (2005).
Finally, having reviewed the record under Penson v. Ohio, 488 U.S. 75, 80
(1988), we find no nonfrivolous issues. Accordingly, we grant defense counsel’s
motion to withdraw, deny Martin’s request for appointment of counsel, and affirm.
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