United States v. Bud Theus

230 F. App'x 642

8th Cir.

2007

Check Treatment

Docket

UNITED STATES of America, Appellee, v. Abu NAHIA, Appellant.

No. 06-3221

United States Court of Appeals, Eighth Circuit.

Submitted: May 16, 2007. Filed: Aug. 6, 2007.

496 F.3d 641

ly decided by both it and appellate court), and because Abu Nahia could have raised them in her previous appeal, but did not, see

United States v. Kress, 58 F.3d 370, 373 (8th Cir.1995). Third, contrary to Abu Nahia’s argument, the district court did not apply the Guidelines as mandatory at resentencing, as shown by the court’s explicit references to the Guidelines range as “recommended.” See (rejecting argument that district court applied Guidelines as mandatory where district court correctly referenced Guidelines as advisory and sentenced defendant to low end of Guidelines range), cert. denied, , and .

The only remaining issue for our review is whether Abu Nahia’s sentence was unreasonable under Booker. We hold that the district court’s comments about Abu Nahia’s failure to accept responsibility for her criminal conduct, and the court’s familiarity with Abu Nahia from her initial sentencing, were sufficient to show that the court considered the 18 U.S.C. § 3553(a) factors in reaching the 63-month sentence. See

United States v. Jones, No. 06-3489, 493 F.3d 938, 939-41, 2007 WL 1976081 at *1-2 (8th Cir. July 10, 2007) (it is not necessary for district court mechanically to recite § 3553(a) factors so long as it is clear from record that court considered them; rejecting argument that brevity of district court’s record required finding that within-Guidelines sentence was unreasonable); (acceptance of responsibility is relevant and proper factor under § 3553(a)); cf. (fact that same judge presided over original sentencing hearing and revocation hearing implied familiarity with defendant’s history and characteristics, and district court’s awareness of defendant’s violations of release conditions supported inference that court was aware of relevant § 3553(a) factors). Further, we see nothing in the record to rebut the presumptive reasonableness of the sentence, which was at the bottom of the Guidelines range. See (sentence within properly calculated Guidelines range is presumptively reasonable). We thus conclude that Abu Nahia’s sentence was not unreasonable.

We have reviewed the record independently under

Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and we have found no non-frivolous issues. Accordingly, we affirm the sentence, and we grant counsel leave to withdraw.

UNITED STATES of America, Appellee, v. Bud THEUS, III, Appellant.

No. 06-3257.

United States Court of Appeals, Eighth Circuit.

Submitted: May 16, 2007. Filed: Aug. 6, 2007.

John E. Haak, Assistant U.S. Attorney, Jan Leslie Holmgren, Assistant U.S. Attorney, Mark E. Salter, Assistant U.S. Attorney, U.S. Attorney’s Office, District of South Dakota, Sioux Falls, SD, for Appellee.

Thomas W. Clayton, Sioux Falls, SD, for Appellant.

Bud Theus III, Leavenworth, KS, pro se.

Before WOLLMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.

PER CURIAM.

A jury found Bud Theus, III guilty of conspiring to possess with intent to distribute five kilograms or more of a mixture and substance containing cocaine, in violation of 21 U.S.C. § 841(a)(1) and 846. Theus argues that the evidence was insufficient to convict him and that the district court¹ erred by failing to recognize that a variance between the conspiracy for which Theus was convicted and the one alleged in the indictment affected his substantial rights. Having considered the briefs, the record, and the district court’s thorough memorandum opinion, we conclude that even if there was a variance, Theus’s substantial rights were not affected and that sufficient evidence supports his conviction. Accordingly, Theus’s arguments lack merit and do not warrant further discussion.

The judgment is affirmed. See 8th Cir. R. 47B.

UNITED STATES of America, Appellee, v. Winfred Eugene TAYLOR, Jr., Appellant.

No. 06-3345.

United States Court of Appeals, Eighth Circuit.

Submitted: Aug. 7, 2007. Filed: Aug. 9, 2007.

F.A. White, Jr., Kansas City, MO, for appellant.

Catherine A. Connelly, Asst. U.S. Atty., Kansas City, MO (Bradley J. Schlozman, U.S. Atty., on the brief), for appellee.

Before BYE, RILEY, and MELLOY, Circuit Judges.

PER CURIAM.

Winfred Eugene Taylor, Jr., challenges his sentence imposed by the district court¹ upon his guilty plea to a drug offense, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. For reversal, he argues that a prior Missouri felony for possession of a controlled substance, for which he received a suspended imposition of sentence and probation, was not a final convic-

Notes

The Honorable Lawrence L. Piersol, United States District Judge for the District of South Dakota. The Honorable Dean Whipple, United States District Judge for the Western District of Missouri.