Mary Sue Shipley v. AR Blue Cross & Blue

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1163
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Steve Euans, * [UNPUBLISHED]
*
Appellant. *
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Submitted: June 6, 2003
Filed: June 19, 2003
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Before LOKEN, Chief Judge, BOWMAN, and WOLLMAN, Circuit Judges.
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PER CURIAM.
Steve Euans pleaded guilty to conspiring to manufacture, distribute, and
possess with intent to distribute 50 grams or more of actual methamphetamine, and
to possess pseudoephedrine or ephedrine pills, intending and having reasonable cause
to believe that the chemical would be used to manufacture methamphetamine, in
violation of 21 U.S.C. § 846. At sentencing, after acknowledging that the parties had
stipulated to and the presentence report (PSR) recommended a 2-level role

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1 The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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enhancement under U.S.S.G. § 3B1.1(c), the district court 1 instead imposed a 3-level
enhancement under U.S.S.G. § 3B1.1(b), explaining that there were five or more
participants in the criminal activity. Granting the government’s motion for a small
substantial-assistance departure, the court sentenced Euans to 200 months
imprisonment and 5 years’ supervised release. On appeal, Euans’s counsel has
moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967),
and Euans has filed a pro se supplemental brief, arguing that the district court should
not have applied the role enhancement, that he should have been granted a larger
departure, and that his sentence was disproportionate to the sentences of his co-
conspirators.
Euans may not challenge the applicability of a 2-level role increase under
section 3B1.1(c) because he specifically stipulated to it in his plea agreement, see
United States v. Nguyen, 46 F.3d 781, 783 (8th Cir. 1995); and the district court did
not plainly err in sua sponte imposing a further 1-level increase under section
3B1.1(b) based upon the involvement of five or more participants, as there is no
dispute that five or more participants were actually involved in the conspiracy, and
the timely received PSR afforded sufficient notice of the enhancement to satisfy due
process, see United States v. Kamerud, 326 F.3d 1008, 1013 (8th Cir. 2003)
(standard of review); United States v. Adipietro, 983 F.2d 1468, 1473-74 (8th Cir.
1993) (affirming sua sponte 3-level enhancement under § 3B1.1(b)). The extent of
the substantial-assistance departure is unreviewable, see United States v. Dutcher, 8
F.3d 11, 12 (8th Cir. 1993), and Euans may not rely on the sentences of his co-
conspirators as a “yardstick” for his own, see United States v. Thompson, 51 F.3d
122, 126 (8th Cir. 1995).

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We have further reviewed the record independently under Penson v. Ohio, 488
U.S. 75 (1988), and have found no nonfrivolous issues. Accordingly, the judgment
is affirmed. We now grant counsel’s motion to withdraw.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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