United States of America v. Kelly Foster

1The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3603
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Northern District of Iowa.
*
Zakee Shareef, * [UNPUBLISHED]
*
Appellant. *
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Submitted: January 2, 2008
Filed: January 10, 2008
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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Zakee Shareef pleaded guilty to conspiring to distribute 50 grams or more of
cocaine base, in violation of 21 U.S.C. § 846, and possessing with intent to distribute
50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1). The district
court 1 sentenced him below the advisory Guidelines range to 165 months in prison and
5 years of supervised release. On appeal, his counsel has filed a brief under Anders
v. California, 386 U.S. 738 (1967), and has moved to withdraw. For the reasons
discussed below, we affirm.

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Counsel argues that two aspects of the Guidelines violate the Eighth
Amendment’s protection against cruel and unusual punishment--the sentencing
disparity between cocaine base and powder cocaine, and the career offender
provision--but we have previously rejected each argument in United States v.
Thompson, 51 F.3d 122, 127 (8th Cir. 1995), and United States v. Foote, 920 F.2d
1395, 1401 (8th Cir. 1990), respectively.
Shareef makes three arguments in his pro se supplemental brief. His challenge
to the validity of Almendarez-Torres v. United States, 523 U.S. 224 (1998), is
foreclosed by our decision in United States v. Torres-Villalobos, 487 F.3d 607, 613
(8th Cir. 2007). His two remaining allegations, about a promised lower sentence and
judicial bias, are not supported by the record.
Having found no nonfrivolous issues after reviewing the record independently
under Penson v. Ohio, 488 U.S. 75 (1988), we affirm the judgment of the district court
and grant counsel’s request to withdraw.
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