United States v. Mary E. Taylor

1 The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-4007
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Eddie Graves, *
* [UNPUBLISHED]
Appellant. *
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Submitted: July 3, 2003
Filed: July 17, 2003
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Before WOLLMAN, RILEY, and MELLOY, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal, Graves challenges the sentence the district court 1
imposed after he pleaded guilty to conspiring to distribute, and to possess with intent
to distribute, 5 kilograms or more of a substance containing cocaine, in violation of
21 U.S.C. §§ 841(b)(1), 846. The district court sentenced Graves to 120 months
imprisonment and 5 years supervised release. On appeal, Graves’s counsel has
moved to withdraw under Anders v. California, 386 U.S. 738 (1967), arguing that the
district court erred in denying his motion for a downward departure.

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The district court’s decision not to grant the downward departure was clearly
discretionary; thus, the decision is unreviewable. See United States v. VanHouten,
307 F.3d 693, 696 (8th Cir. 2002) (discretionary decision not to depart from
Guidelines is unreviewable on appeal absent unconstitutional motive, unless district
court erroneously concluded it lacked authority to depart).
Following careful review of the record, we find no other nonfrivolous issues.
See Penson v. Ohio, 488 U.S. 75, 80 (1988). Accordingly, the judgment is affirmed.
We also grant counsel’s motion to withdraw.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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