U.S. Court of Appeals for the Eighth Circuit, 2006

United States v. Orin Johnson

United States v. Orin Johnson
U.S. Court of Appeals for the Eighth Circuit · Decided August 14, 2006 · Riley, Colloton, Gruender
192 F. App'x 572

United States v. Orin Johnson

Opinion

[UNPUBLISHED]

PER CURIAM.

Orin Johnson appeals the 46-month prison sentence the district court 1 imposed after he pleaded guilty to one count of conspiring to distribute and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846. His counsel has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that the district court erred in finding that Johnson’s post-arrest rehabilitation was not sufficiently extraordinary to warrant a downward departure.

While atypical post-offense rehabilitation can by itself be the basis for a discretionary departure under U.S.S.G. § 5K2.0, see United States v. Chapman, 356 F.3d 843, 849 (8th Cir. 2004), the denial of such a motion is unreviewable where the district court recognized its authority to depart downward and declined to do so, see United States v. Vasquez, 433 F.3d 666, 670 (8th Cir. 2006).

Having reviewed the record under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we conclude there are no nonfrivolous issues. Accordingly, we affirm the district court’s judgment, and we grant counsel leave to withdraw.

1

. The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska.

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