United States of America v. Donald Andrews

United States Court of Appeals
For the Eighth Circuit
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No. 12-1452
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United States of America
lllllllllllllllllllll Appellee
v.
Donald Andrews
lllllllllllllllllllll Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Ft. Smith
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Submitted: October 3, 2012
Filed: October 23, 2012
[Unpublished]
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Before MURPHY, ARNOLD, and SMITH, Circuit Judges.
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PER CURIAM.
After Donald Andrews pleaded guilty to conspiring to distribute more than 50
grams of a mixture or substance containing methamphetamine, in violation of

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21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii), and 846, the district court sentenced1
Mr. Andrews to the mandatory minimum of 60 months in prison and 5 years of
supervised release. On appeal, counsel moves to withdraw, and has filed a brief
under Anders v. California, 386 U.S. 738 (1967).
The district court correctly concluded that the 5-year statutory minimum
sentence applied, based on the unobjected-to drug quantity recommended in the
presentence report. See 21 U.S.C. § 841(b)(1)(B)(viii); United States v. Douglas,
646 F.3d 1134, 1137 (8th Cir. 2011) (if defendant objects only to presentence report’s
recommendation, but not to facts themselves, court may accept facts as true). The
court lacked discretion under the circumstances to sentence Mr. Andrews below the
statutory minimum. See United States v. Watts, 553 F.3d 603, 604 (8th Cir. 2009).
We have reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), and find no
nonfrivolous issues for appeal. Accordingly, we affirm the judgment of the district
court, and we grant counsel’s motion to withdraw, subject to counsel informing
appellant about procedures for seeking rehearing or filing a petition for certiorari.
______________________________
The Honorable Robert T. Dawson, United States District Judge for the1
Western District of Arkansas.
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