U.S. Court of Appeals for the Eighth Circuit, 2003

United States v. Tony Duane Munson

United States v. Tony Duane Munson
U.S. Court of Appeals for the Eighth Circuit · Decided May 1, 2003 · Loken, Bowman, Melloy
61 F. App'x 999

United States v. Tony Duane Munson

Opinion

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.

On appeal, Munson’s counsel filed a brief and moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (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, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and have found no nonfrivolous issues.

Accordingly, we affirm. We now grant counsel’s motion to withdraw.

1

. The Honorable Warren K. Urbom, United States District Judge for the District of Nebraska.

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