United States v. Tyler Brown , 396 F. App'x 328 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1791
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Tyler Brown, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 7, 2010
Filed: October 12, 2010
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Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.
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PER CURIAM.
A jury found Tyler Brown guilty of conspiring to distribute and possess with
intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 846, and the district court1 imposed the statutory mandatory
minimum sentence of 120 months in prison. On appeal, defense counsel has moved
to withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967),
arguing that the court should have sentenced Brown below the mandatory minimum
using a one-to-one ratio of crack cocaine to powder cocaine to determine the drug
1
The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
penalty; the government violated Brady v. Maryland, 373 U.S. 83 (1963), by waiting
until the morning of trial to provide a witness’s rap sheet; and another witness gave
false testimony before the grand jury. In pro se supplemental filings, Brown argues
that counsel rendered ineffective assistance, the court should have sentenced him
below the statutory minimum, and the court should have applied a November 2010
Guidelines amendment in calculating his criminal history score. We affirm.
Section 841 has been amended to raise the threshold for imposition of a 120-
month minimum prison sentence, see Fair Sentencing Act of 2010, Pub. L. No. 111-
220, § 2(a)(1), 124 Stat. 2372, 2372 (Aug. 3, 2010), but the amendment was not made
retroactive, see United States v. Carradine, No. 08-3220, 2010 WL 3619799, at *4-5
(6th Cir. Sept. 20, 2010) (general savings statute, 1 U.S.C. § 109, requires application
of penalties in place at time crime was committed unless new enactment expressly
provides for its own retroactive application; Fair Sentencing Act of 2010 contains no
express statement that it is retroactive and no such express intent can be inferred from
its plain language). Thus the statutory minimum existing at the time the offense was
committed governs.
We also find no Brady violation, much less a reversible one, see United States
v. Greatwalker, 356 F.3d 908, 911-12 (8th Cir. 2004) (per curiam), and any perjured
testimony before the grand jury was rendered harmless by the petit jury’s guilty
verdict, see United States v. Wilson, 565 F.3d 1059, 1070 (8th Cir. 2009), cert.
denied, 130 S. Ct. 1052 (2010). As to the ineffective-assistance claims, these matters
are not properly raised in this direct criminal appeal, see United States v. Ramirez-
Hernandez, 449 F.3d 824, 826-27 (8th Cir. 2006); and Brown was not entitled to the
benefit of a Guidelines amendment that was not in effect at his sentencing (which
would not have helped him anyhow in light of the mandatory minimum). Finally,
having conducted our review under Penson v. Ohio, 488 U.S. 75 (1988), we find no
nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw, and we
affirm the district court’s judgment.
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