USA v. Donald Daye Storer

1The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2807
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Lamarr T. Davis, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 2, 2005
Filed: June 8, 2005
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Before MELLOY, McMILLIAN, and GRUENDER, Circuit Judges.
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PER CURIAM.
Lamarr Davis challenges the sentences the district court 1 imposed after he
pleaded guilty to possessing with intent to distribute 5 grams or more of cocaine base
(crack), in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and to violating the
terms of his supervised release on a prior felon-in-possession sentence. His counsel
has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738
(1967), arguing the court erred by sentencing Davis pursuant to the Guidelines in
violation of Blakely v. Washington,124 S. Ct. 2531 (2004), by failing to give effect

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to an oral agreement reached with the previous prosecutor, and by giving Davis
consecutive sentences for the drug-trafficking conviction and the supervised-release
violation.
We do not consider Davis’s challenge to his drug-trafficking sentence, because
in the written plea agreement, Davis expressly waived the right to appeal this
sentence, and the record demonstrates the waiver should be enforced. See United
States v. Andis, 333 F.3d 886, 889-91 (8th Cir.) (en banc), cert. denied, 540 U.S. 997
(2003). To the extent Davis is arguing that his indictment on the drug-trafficking
crime violated an oral agreement with the previous prosecutor, such an argument is
not covered by the sentence-appeal waiver, but it is foreclosed by his guilty plea. See
United States v. Vaughan, 13 F.3d 1186, 1187-88 (8th Cir.), cert. denied, 511 U.S.
1094 (1994).
The revocation sentence is not covered by the plea agreement, but the sentence
is not implicated by United States v. Booker, 125 S. Ct. 738 (2005), because Chapter
7 of the Guidelines is merely advisory, see United States v. Holt, No. 04-3252, 2005
WL 1109624 (May 11, 2005), at *1 n.4 (unpublished per curiam) (Chapter 7 of
Guidelines has always been advisory and remains unaltered by Booker), and the
revocation sentence was not an abuse of discretion, see 18 U.S.C. § 3583(e)(3)
(district court may revoke supervised release if it finds by a preponderance of
evidence that defendant violated terms; maximum term of 2 years imprisonment is
authorized upon revocation of supervised release if original offense was Class C
felony); United States v. Holmes, 283 F.3d 966, 968 (8th Cir. 2002) (revocation
sentence within bounds of § 3583(e) will not be disturbed absent abuse of discretion);
U.S.S.G. § 7B1.3(f) (revocation term shall be served consecutively to any other
sentence).

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Having carefully 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.
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