United States v. Marco Whitley, Sr.
670 F. App'x 438
8th Cir.2016Background
- Defendant Marco Whitley pleaded guilty to being a felon in possession of a firearm in the Western District of Missouri.
- Before pleading guilty, Whitley moved to suppress evidence; the district court denied the suppression motion.
- At sentencing the district court applied a Guidelines enhancement that increased Whitley’s calculated Guidelines range and then varied upward, imposing a sentence above the Guidelines range.
- Whitley’s counsel filed an Anders brief challenging (1) denial of the suppression motion and (2) the application of the sentencing enhancement; counsel moved to withdraw.
- Whitley filed a pro se brief arguing the court erred by varying upward without providing notice under Federal Rule of Criminal Procedure 32(h), and moved for appointment of counsel.
- The Eighth Circuit reviewed the record, concluded the suppression challenge was waived by the guilty plea, held Rule 32(h) notice is required for departures not variances, found any Guidelines-calculation error harmless, affirmed the judgment, granted counsel’s motion to withdraw, and denied appointment of counsel as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of suppression can be reviewed after guilty plea | Whitley contends suppression denial was erroneous | Government contends suppression challenge waived by guilty plea | Waived: non-jurisdictional errors are forfeited by a valid guilty plea (challenge not reviewable) |
| Whether Rule 32(h) required advance notice before an upward variance | Whitley argues Rule 32(h) notice was required before varying upward | Government argues Rule 32(h) requires notice only for departures, not variances | No merit to Whitley: Rule 32(h) applies to departures; no advance notice required for a variance |
| Whether the sentencing enhancement (Guidelines calculation) was erroneous and prejudicial | Whitley (via counsel) argued enhancement was improperly applied and affected Guidelines range | Government contends any miscalculation was harmless because court would have imposed same sentence | Harmless error: district court stated it would have imposed same sentence even if objections were sustained; no reasonable probability of prejudice |
| Whether any nonfrivolous appellate issues exist to keep counsel on the case | Whitley sought appointment of counsel for appeal | Counsel moved to withdraw under Anders after filing brief | Independent review found no nonfrivolous issues; counsel’s withdrawal granted; appointment of counsel denied as moot |
Key Cases Cited
- Staples v. United States, 435 F.3d 860 (8th Cir.) (guilty plea waives non-jurisdictional defects)
- Stewart v. United States, 972 F.2d 216 (8th Cir. 1992) (declining to review suppression ruling after guilty plea)
- Foy v. United States, 617 F.3d 1029 (8th Cir. 2010) (no advance notice required for upward variance)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (Guidelines-calculation errors may be harmless when court would have imposed same sentence irrespective of range)
- Penson v. Ohio, 488 U.S. 75 (1988) (appellate courts must independently review record when counsel seeks to withdraw after filing an Anders brief)
- Anders v. California, 386 U.S. 738 (1967) (procedures for counsel withdrawal when appeal is frivolous)