Mary Sue Shipley v. AR Blue Cross & Blue

1 The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-4018
___________
United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Jose M. Lopez, * District of Nebraska.
* [Unpublished]
Appellant. *
___________
Submitted: June 11, 2003
Filed: June 18, 2003
___________
Before MORRIS SHEPPARD ARNOLD, MURPHY, and BYE, Circuit Judges.
___________
PER CURIAM.
Jose Lopez pleaded guilty to possessing with intent to distribute 100 grams or
more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1). The
district court 1 sentenced him to 70 months imprisonment and 5 years supervised
release. Counsel has moved to withdraw and filed a brief under Anders v. California,
386 U.S. 738 (1967), arguing that Lopez’s sentence is longer than necessary to
rehabilitate him and to protect society, particularly because he has no prior felony
convictions.

-- 1 of 2 --

-2-
To the extent that Lopez is arguing that his sentence is disproportionate to his
crime, this argument does not succeed. Cf. Ewing v. California, 123 S. Ct. 1179,
1186-87 (2003) (Eighth Amendment does not require strict proportionality between
crime and sentence). Further, a more general challenge to the harshness of his
sentence is likewise unavailing, because his 70-month sentence is within--and, in fact,
is at the bottom of--a Guidelines range that he specifically elected not to challenge
at sentencing and that he does not challenge on appeal. Cf. United States v.
Woodrum, 959 F.2d 100, 101 (8th Cir. 1992) (per curiam) (sentence is not reviewable
merely because it is at top of properly calculated sentencing range).
Having conducted an independent review under Penson v. Ohio, 488 U.S. 75
(1988), we find no nonfrivolous issues. Accordingly, we affirm, and we grant
counsel’s motion to withdraw.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

-- 2 of 2 --