Darrell T. Kind v. Sheriff Frank

1 The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3451
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Tony Duane Munson, also known as *
Anthony D. Munson, * [UNPUBLISHED]
*
Appellant. *
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Submitted: April 29, 2003
Filed: May 1, 2003
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Before LOKEN, Chief Judge, BOWMAN and MELLOY, Circuit Judges.
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PER CURIAM.
Tony Duane Munson pleaded guilty to possessing with intent to distribute fifty
grams or more of a mixture containing methamphetamine. At sentencing, the District
Court 1 denied Munson’s motion under U.S.S.G. § 4A1.3 (2001) for a downward
departure and sentenced him to seventy months of imprisonment and five years of
supervised release.

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-2-
On appeal, Munson’s counsel filed a brief and moved to withdraw under
Anders v. California, 386 U.S. 738 (1967), arguing that the District Court abused its
discretion in denying Munson’s departure motion. Counsel’s argument is
unreviewable, however, because the sentencing transcript shows that the District
Court’s refusal to depart was an exercise of discretion. See United States v. Lopez-
Arce, 267 F.3d 775, 783–84 (8th Cir. 2001). We have further reviewed the record
independently under Penson v. Ohio, 488 U.S. 75 (1988), and have found no
nonfrivolous issues.
Accordingly, we affirm. We now grant counsel’s motion to withdraw.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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