United States v. Earnest Washington

1 The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3423
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Mark A. Wynn, * [Unpublished]
*
Appellant. *
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Submitted: December 18, 2002
Filed: January 16, 2003
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Before MORRIS SHEPPARD ARNOLD, MURPHY, and MELLOY, Circuit Judges.
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PER CURIAM.
Mark A. Wynn pleaded guilty to conspiracy to distribute and possess with
intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846. At
sentencing, the district court1 overruled Wynn’s objection to application of the career-
offender Guideline, see U.S.S.G. § 4B1.1(B), which the presentence report had
recommended based on a prior two-count state felony drug conviction (for which
Wynn had received concurrent prison terms) and a prior federal felony drug
conviction. After finding that the applicable sentencing range was 188-235 months,

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the court granted the government’s motion for a substantial-assistance downward
departure, and sentenced Wynn to 90 months imprisonment and 4 years supervised
release. On appeal, Wynn’s counsel has filed a brief and moved to withdraw under
Anders v. California, 386 U.S. 738 (1967), arguing the district court erred in finding
Wynn was a career offender and the court should have granted a greater downward
departure. Wynn has not filed a pro se supplemental brief.
First, we conclude that the career-offender determination was proper, despite
Wynn’s assertion that one of the state counts of conviction had been set aside and the
other was being appealed: at the time of this sentencing, at least one state count of
conviction remained valid, and thus invalidation of the other state count would still
leave the requisite two prior convictions. See U.S.S.G. §§ 4B1.1, 4B1.2(c). Second,
the extent of the district court’s departure is unreviewable. See United States v.
McFarlane, 309 F.3d 510, 516 (8th Cir. 2002).
Having independently reviewed the record in accordance with Penson v. Ohio,
488 U.S. 75 (1988), we find no nonfrivolous issues. Accordingly, we affirm. We
also grant counsel’s motion to withdraw.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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