United States v. Joseph Harris , 344 F. App'x 294 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-2028
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Joseph George Harris, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: July 27, 2009
Filed: July 29, 2009
___________
Before BYE, BOWMAN, and BENTON, Circuit Judges.
___________
PER CURIAM.
Joseph George Harris appeals the 180-month sentence the district court1
imposed upon his guilty plea to distributing cocaine base, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C). His counsel has moved to withdraw and has filed a brief under
Anders v. California, 386 U.S. 738 (1967), arguing that the sentence is unreasonable.
In his pro se appellate filings, Harris argues that a career-offender enhancement should
not have been applied because he was only 18 years old when he committed one of
the predicate offenses; his criminal history score was calculated incorrectly; he told
1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
his attorney to object to the drug-quantity determination, which Harris maintains was
erroneous and resulted in an incorrect base offense level under the Guidelines; and he
should have been allowed to withdraw his guilty plea. We affirm.
The district court did not err in using a conviction for a burglary Harris
committed when he was 18 years old for purposes of career-offender eligibility. See
U.S.S.G. § 4B1.2, comment. (n.1) (for purposes of career-offender eligibility, “prior
felony conviction” means prior adult federal or state conviction punishable by death
or imprisonment exceeding one year; conviction for offense committed at age 18 or
older is adult conviction).
Harris’s arguments concerning his base offense level (related to the drug
quantity) and his criminal history score are moot. See U.S.S.G. § 4B1.1(b) (career
offender is subject to criminal history Category VI in every case under this subsection;
career-offender base offense level shall apply if higher than otherwise applicable base
offense level); United States v. Shepard, 462 F.3d 847, 872 (8th Cir. 2006) (where
career-offender Sentencing Guideline is properly applied and results in applicable
base offense level, challenge to district court’s determination of non-career-offender
base offense level is rendered moot).
To the extent Harris is arguing that his counsel was ineffective and his plea was
involuntary, we decline to consider these arguments on direct appeal. See United
States v. Ramirez-Hernandez, 449 F.3d 824, 827 (8th Cir. 2006) (this court “will
consider ineffective-assistance claims on direct appeal only where the record has been
fully developed, where not to act would amount to a plain miscarriage of justice, or
where counsel’s error is readily apparent”); United States v. Murphy, 899 F.2d 714,
716 (8th Cir. 1990) (claim that guilty plea was involuntary is not cognizable on direct
appeal unless it was first presented to district court).
-2-
We conclude that Harris’s 180-month sentence is not unreasonable. The court
considered the factors under 18 U.S.C. § 3553(a), heard counsel’s arguments in favor
of a lower sentence, and did not overlook a relevant factor, give significant weight to
an improper or irrelevant factor, or misapply any factor. See 18 U.S.C. § 3553(a)(1),
(2)(A)-(C), (3) (in determining sentence, court should consider nature and
circumstances of offense and history and characteristics of defendant; need for
sentence to reflect seriousness of offense, promote respect for law, provide just
punishment, afford adequate deterrence, and protect public from further crimes of
defendant; kinds of sentences available); United States v. Toothman, 543 F.3d 967,
970 (8th Cir. 2008) (assessing reasonableness of sentence under abuse-of-discretion
standard; within-Guidelines-range sentence is accorded presumption of reasonableness
on appeal); United States v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008) (normally,
district court does not abuse its discretion by not considering argument of which it is
aware); United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005) (abuse of
discretion may occur when court fails to consider relevant factor that should have
received significant weight, gives significant weight to improper or irrelevant factor,
or clearly errs in weighing appropriate factors).
Reviewing the record independently under Penson v. Ohio, 488 U.S. 75, 80
(1988), we find no nonfrivolous issues. Accordingly, we affirm the district court and
grant counsel’s motion to withdraw.
______________________________
-3-