United States v. Nickolas Conrad

1 The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2605
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United States of America, *
*
Appellee, *
* Appeal from the United
v. * States District Court for the
* Eastern District of Missouri.
Michael Douglas, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 30, 2003
Filed: February 10, 2003
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Before LOKEN, FAGG, and MURPHY, Circuit Judges.
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PER CURIAM.
Michael Douglas appeals the sentence the district court 1 imposed after a jury
found him guilty of conspiring to distribute and possess with intent to distribute
cocaine base, in violation of 21 U.S.C. § 846, and 3 counts of distributing cocaine
base, in violation of 21 U.S.C. § 841(b)(1)(A) and (B). At sentencing, the district
court sustained Douglas’s objections to the presentence report, reducing the drug

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quantity attributable to him and applying a role-in-the-offense reduction. Thereafter,
the court sentenced Douglas to concurrent prison terms of 168 months on each count,
and concurrent 5-year supervised release terms. On appeal, Douglas’s counsel has
moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967),
arguing that the district court erred by not departing downward to eliminate the
disparity between the sentences of Douglas and his coconspirators. We affirm.
We first note that the district court sustained Douglas’s objections and
sentenced him at the bottom of the resulting Guidelines range, and it does not appear
Douglas moved for a downward departure from that range. See United States v.
Carrasco, 271 F.3d 765, 768 (8th Cir. 2001) (failure to request downward departure
subjects appeal to, at best, plain-error review). In any event, disparity between
codefendants’ sentences is not a proper basis for departure. See United States v.
Wong, 127 F.3d 725, 728 (8th Cir. 1997) (disparity between sentences imposed on
codefendants is not proper basis for departure; some disparity will inevitably exist
because of unique facts of each individual defendant’s case); United States v.
Granados, 962 F.2d 767, 774 (8th Cir. 1992) (defendant cannot rely upon
codefendant’s sentence as “a yardstick” for his own; sentence is not disproportionate
just because it exceeds codefendant’s sentence).
Having reviewed the record independently pursuant to 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.

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