United States v. Dondrick James , 268 F. App'x 484 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-4192
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Dondrick Alex James, *
also known as Duck, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: February 7, 2008
Filed: March 6, 2008
___________
Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
Dondrick Alex James pleaded guilty to aiding and abetting the distribution of
cocaine base, in violation of 21 U.S.C. § 841. The district court1 sentenced him to 210
months in prison and 5 years of supervised release. On appeal, his counsel has moved
to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing
that the court erred by applying an obstruction-of-justice enhancement and by failing
to award a reduction for acceptance of responsibility. In his pro se brief, James argues
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
that the obstruction-of-justice enhancement was a factor used to increase his sentence
based upon a preponderance of the evidence, in violation of United States v. Booker,
543 U.S. 220 (2005), and that the government breached the plea agreement by
advocating for the enhancement. James has also moved for appointment of new
counsel and to “deny” counsel’s Anders brief.
We review for clear error the district court’s findings with respect to the
obstruction-of-justice increase and an acceptance-of-responsibility reduction. See
United States v. Nguyen, 339 F.3d 688, 690 (8th Cir. 2003) (generally acceptance of
responsibility is not present when defendant receives enhancement for obstruction of
justice, but court may adjust for both provisions in “extraordinary case”). The district
court did not err in assessing the enhancement and denying the reduction: while he
was out on bond pending sentencing in this matter, James used drugs, was discharged
from a drug rehabilitation program for violating rules, and failed to appear at his
ensuing revocation hearing resulting in his arrest. See id. at 689, 691-92 (district court
did not err in refusing to grant acceptance-of-responsibility reduction where one
month before trial defendant absconded for 15 months, did not voluntarily turn
himself in, and did not clearly accept responsibility for obstructive conduct); United
States v. Thomas, 72 F.3d 92, 93 (8th Cir. 1995) (per curiam) (defendant’s absconding
from supervision while on bond warranted obstruction-of-justice enhancement);
U.S.S.G. § 3C1.1, comment. (n.4(e)) (obstruction enhancement applies if defendant
willfully fails to appear, as ordered, for judicial hearing).
We also conclude that James’s pro se assertions fail. See United States v.
Pirani, 406 F.3d 543, 551 n.4 (8th Cir. 2005) (en banc) (“Nothing in Booker suggests
that sentencing judges are required to find sentence-enhancing facts beyond a
reasonable doubt under the advisory Guidelines regime.”); United States v.
Archambault, 344 F.3d 732, 737 (8th Cir. 2003) (counsel’s failure to argue
plea-agreement breach at sentencing waived issue).
-2-
Having reviewed the record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we
find no nonfrivolous issues. Accordingly, we affirm the district court’s judgment, we
deny James’s motions, we dismiss counsel’s motion to withdraw as moot since
counsel has unfortunately died in the meantime, and call James' attention to the fact
that he has the right to file petitions for rehearing and for writ of certiorari. See
attached Plan to Implement the Criminal Justice Act of 1964 section V (as amended
Dec. 6, 1994).
______________________________
-3-
cjaplan.amd
PLAN
UNITED STATES COURT OF APPEALS
EIGHTH CIRCUIT
AMENDMENT TO PART V OF THE PLAN
TO IMPLEMENT THE CRIMINAL
JUSTICE ACT OF 1964
_______
Adopted December 6, 1994
V. Duty of Counsel as to Certiorari.
The representation of counsel on appeal, where the
appeal has been unsuccessful, shall extend to advising
the defendant of the right to file a petition for a writ
of certiorari in the Supreme Court of the United States,
and to informing the defendant of counsel's opinion as to
the merit and likelihood of the success thereof. If the
defendant so requests, and if counsel determines that
there is a reasonable likelihood that a petition for a
writ of certiorari will be granted (applying the
standards set forth in Rule 10 of the rules of the
Supreme Court of the United States), representation shall
also extend to the preparing and filing of such a
petition.
If counsel declines to file a petition for a writ of
certiorari requested by the defendant based upon
counsel's determination that there is not reasonable
likelihood it will be granted, counsel shall so inform
the Court and shall file a written motion to withdraw,
accompanied by counsel's certification that a copy of the
motion was furnished to the defendant. If the motion to
withdraw is granted, counsel shall promptly advise the
defendant of the procedures for filing a petition for a
writ of certiorari pro se, following which counsel's
representation of the defendant shall terminate.
Page 1