United States v. Michael K. Williams ( 1996 )

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No. 95-2111
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Michael Kenneth Williams, also *
known as Squirrel, * [UNPUBLISHED]
*
Appellant. *
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Submitted: March 5, 1996
Filed: March 8, 1996
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Before WOLLMAN, BEAM, and HANSEN, Circuit Judges.
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PER CURIAM.
Pursuant to a plea agreement, Williams pleaded guilty to one count
of distributing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C), and one count of possessing a firearm in violation of 18 U.S.C.
§§ 922(g) and 924(a)(2). The district court1 sentenced Williams to 137
months imprisonment and 5 years supervised release on the methamphetamine
count and to 120 months imprisonment and 3 years supervised release on the
firearms count, the sentences to run concurrently. On appeal, Williams's
appointed counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), raising as issues (1) whether law enforcement officials
engaged in sentencing entrapment by delaying revocation of Williams's
probation so he could engage in additional drug buys, and (2) whether
evidence of tape recorded conversations acquired by
1
The Honorable D. Brook Bartlett, Chief Judge, United States
District Court for the Western District of Missouri.
a body recorder worn by an undercover law enforcement official should be
suppressed, because of the government's failure to obtain prior
authorization pursuant to 18 U.S.C. § 2515 et seq.
We conclude Williams's claim that undercover law enforcement
officials illegally recorded conversations with him is meritless, as
monitoring of a conversation by a person acting under color of law is
permitted when that person consents. See 18 U.S.C. § 2511(2)(c); United
States v. Jones, 801 F.2d 304, 315 (1986).
Williams's sentencing entrapment claim may be more aptly
characterized as a sentencing manipulation claim. Compare United States
v. Barth, 990 F.2d 422, 424 (8th Cir. 1993) (sentencing entrapment) with
United States v. Shephard, 4 F.3d 647, 649 (8th Cir. 1993) (sentencing
manipulation), cert. denied, 114 S. Ct. 1322 (1994). No matter how
characterized, the claim fails. The record indicates that, in this
proceeding, the amount of drugs counted as relevant for sentencing did not
include any drugs purchased after the delay in Williams's probation
revocation.
We do not consider Williams's ineffective-assistance claim, raised
for the first time on appeal in one of his two supplemental pro se briefs,
as that claim should be raised in a 28 U.S.C. § 2255 proceeding where the
record can be appropriately developed. See United States v. Kenyon, 7 F.3d
783, 785 (8th Cir. 1993).
In accordance with Penson v. Ohio, 488 U.S. 75, 80 (1988), we have
reviewed the record, and have found no nonfrivolous issues for review.
Accordingly, we affirm the judgment of the district court.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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