595 F. App'x 665
8th Cir.2015Background
- Defendant Damon O’Neil was convicted of a drug conspiracy and originally sentenced; this appeal follows a remand for resentencing based on Alleyne v. United States (jury drug-quantity finding issue).
- Counsel filed an Anders brief seeking leave to withdraw and raised several challenges to conviction and sentence; O’Neil filed a pro se supplemental brief and motions for new counsel and discovery.
- Issues on appeal include sufficiency of the evidence, the Government’s § 851 enhancement notice, drug-quantity and role/witness-intimidation enhancements at resentencing, and alleged overstated criminal history and substantive unreasonableness of the sentence.
- The district court at resentencing made drug-quantity determinations and applied enhancements, but also calculated a Guidelines range based on O’Neil’s career-offender status.
- The appellate court conducted independent Penson review for nonfrivolous issues and considered whether any alleged resentencing errors were harmless given the career-offender calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence supporting conviction | O’Neil argues evidence was insufficient | Government contends sufficiency was already rejected on prior appeal and issue is outside remand scope | Not considered — issue previously rejected and outside remand scope |
| Withdrawal of § 851 enhancement notice | O’Neil argues DOJ policy change required withdrawal of notice | Government says policy does not create enforceable defendant rights | Rejected — no authority that DOJ policy creates enforceable right |
| Drug-quantity and sentencing enhancements (aggravating role, witness intimidation) at resentencing | O’Neil and counsel argue district court erred in quantity and enhancements | Government defends court’s findings | Any error harmless because Guidelines range was governed by career-offender status |
| Overstated criminal history & substantive unreasonableness of sentence | O’Neil argues criminal history overstated and sentence unreasonable | Government notes court declined to depart and imposed a below-Guidelines variance | Rejected — decision not to depart unreviewable; below-Guidelines sentence not substantively unreasonable |
| Counsel withdrawal / appellate review of counsel’s Anders brief | Counsel seeks leave to withdraw; O’Neil seeks new counsel | Court must independently review record for nonfrivolous issues per Penson | Grant counsel’s motion to withdraw; Penson review found no nonfrivolous issues |
Key Cases Cited
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (jury findings increasing mandatory penalties must be submitted to jury)
- Bartsh v. United States, 69 F.3d 864 (8th Cir.) (prior appeal bars relitigation of sufficiency issues)
- United States v. Leathers, 354 F.3d 955 (8th Cir.) (prosecutorial policy changes do not necessarily create enforceable rights for defendants)
- United States v. Feemster, 572 F.3d 455 (8th Cir.) (standards for appellate review of sentencing decisions)
- United States v. Rodriguez, 711 F.3d 928 (8th Cir.) (harmlessness of guideline errors when career-offender range governs)
- United States v. Wanna, 744 F.3d 584 (8th Cir.) (decision not to depart based on criminal history may be unreviewable)
- United States v. Zauner, 688 F.3d 426 (8th Cir.) (review of substantive reasonableness for below-Guidelines sentences)
- Penson v. Ohio, 488 U.S. 75 (1988) (appellate courts must independently review Anders briefs for nonfrivolous issues)