United States v. Benyamin Hawthorne , 448 F. App'x 641 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1938
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
Benyamin Hawthorne, * [UNPUBLISHED]
*
Appellant. *
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Submitted: October 7, 2011
Filed: October 11, 2011
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Before LOKEN, BYE, and COLLOTON, Circuit Judges.
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PER CURIAM.
Benyamin Hawthorne pleaded guilty to conspiracy to distribute 50 grams or
more of cocaine base and 500 grams or more of cocaine, in violation of 21 U.S.C. §§
841, 846; possession of a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. §§ 2, 924(c); and criminal forfeiture of $9,127. The district
court1 sentenced him to 135 months in prison on the conspiracy count, a consecutive
60-month term on the firearm count, consecutive 5-year terms of supervised release,
and forfeiture of $9,127. Hawthorne appeals, and his counsel has moved to withdraw,
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
submitting a brief under Anders v. California, 386 U.S. 738 (1967), in which he
argues that the district court abused its discretion by failing to vary downward
because none of Hawthorne’s co-conspirators were similarly charged with section
924(c) for substantially identical conduct. Hawthorne has filed a pro se supplemental
brief asserting additional arguments.
First, we conclude Hawthorne has failed to rebut the presumption that the
sentence on the conspiracy charge, which falls at the bottom of the unchallenged
Guidelines range, is not substantively unreasonable, see Gall v. United States, 552
U.S. 38, 51 (2007); and the district court lacked discretion to impose less than the
consecutive statutory minimum of 60 months on the firearm count, see United States
v. Chacon, 330 F.3d 1065, 1066 (8th Cir. 2003). Second, we find that the district
court did not abuse its discretion in denying a downward variance. See United States
v. Brown, 627 F.3d 1068, 1074 (8th Cir. 2010) (standard of review).
Third, Hawthorne’s guilty plea forecloses his pro se challenge to the denial of
certain case documents, see United States v. Taylor, 519 F.3d 832, 835-36 (8th Cir.
2008); his challenge that the prosecutor introduced perjured testimony at sentencing
is conclusory and therefore unavailing, see United States v. Funchess, 422 F.3d 698,
701 (8th Cir. 2005); and we decline to review on direct appeal what appears to be a
claim of ineffective assistance of counsel at sentencing, see United States v.
McAdory, 501 F.3d 868, 872 (8th Cir. 2007).
Finally, having reviewed the record independently under Penson v. Ohio, 488
U.S. 75, 80 (1988), we find no nonfrivolous issues. Accordingly, we grant counsel’s
motion to withdraw, and we affirm the judgment of the district court.
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