641 F. App'x 650

8th Cir.

2016

UNITED STATES of America, Plaintiff-Appellee v. Reginald L. FORD, Defendant-Appellant.

No. 15-3684

United States Court of Appeals, Eighth Circuit

Submitted: March 29, 2016. Filed: April 1, 2016.

650

authorized by reference to the policies relevant at step one is warranted in whole or in part under the particular circumstances of the case.” Id. Specifically, “[t]he court shall consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant‘s term of imprisonment.” U.S.S.G. § 1B1.10(b) cmt. n. 1(B)(ii). A court‘s “reference to § 3553(a) is appropriate only at the second step of this circumscribed inquiry.” Dillon, 560 U.S. at 827, 130 S.Ct. 2683. Proceedings pursuant to § 3582(c)(2) are not “plenary resentencing proceedings.” Id.

Here, the district court followed the two-step process for determining to what extent to reduce Thompson‘s sentence. The court first calculated the amended Guidelines range, and Thompson does not dispute that the district court did this properly. Second, the court noted its consideration of the § 3553(a) factors at sentencing without specifically discussing them individually. See United States v. Castillo, 713 F.3d 407, 412 (8th Cir.2013) (“When considering the § 3553(a) factors, ‘[a] district court is not required to make specific findings; all that is generally required to satisfy the appellate court is evidence that the district court was aware of the relevant factors.‘” (alteration in original) (quoting United States v. Perkins, 526 F.3d 1107, 1110 (8th Cir.2008))). The district court determined the extent of the reduction from the 380-month sentence to the new, reduced sentence based upon Thompson‘s extensive criminal history and the risk his release posed to the community—factors similar to those considered in the original U.S.S.G. § 4A1.3 upward departure. Consideration of “the nature and seriousness of the danger to ... the community” is a factor that the district court was required to consider pursuant to § 1B1.10(b) cmt. n. 1(B)(ii). The district court has “substantial latitude to determine how much weight to give the various factors under § 3553(a)” and chose to give more weight to the aggravating factors of recidivism and Thompson‘s criminal history. See United States v. Timberlake, 679 F.3d 1008, 1012 (8th Cir.2012) (quotation and citation omitted). As a result, the district court did not abuse its discretion in reducing Thompson‘s 380-month sentence to 365 months’ imprisonment.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

Anita L. Burns, Asst. Fed. Public Defender, Kansas City, MO (Laine Cardarella, Fed. Public Defender, on the brief), for appellant.

Reginald L. Ford, Terre Haute, IN, pro se.

David A. Barnes, Asst. U.S. Atty., Kansas City, MO, for appellee.

Before GRUENDER, ARNOLD, and SHEPHERD, Circuit Judges.

PER CURIAM.

Reginald Ford directly appeals the sentence imposed by the district court¹ after he pled guilty to a drug offense, pursuant to a plea agreement containing an appeal waiver. His counsel has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that Ford‘s sentence is unreasonable and that Ford received ineffective assistance of counsel. Ford has filed a supplemental brief, arguing that the district court misapplied the career-offender provisions of the Guidelines, in light of Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). First, we decline to reach the ineffective-assistance claim on direct appeal. See United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir. 2006) (ineffective-assistance claims are usually best litigated in collateral proceedings, where record can be properly developed). Second, as to the remaining arguments, we enforce the appeal waiver. See United States v. Scott, 627 F.3d 702, 704 (8th Cir.2010) (de novo review); United States v. Andis, 333 F.3d 886, 889-90 (8th Cir.2003) (en banc) (appeal waiver will be enforced if appeal falls within scope of waiver, defendant knowingly and voluntarily entered into waiver and plea agreement, and enforcing waiver would not result in miscarriage of justice). Finally, having independently reviewed the record under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous issues for appeal.

Accordingly, we dismiss the appeal and grant counsel‘s motion to withdraw.

Notes

The Honorable Beth Phillips, United States District Judge for the Western District of Missouri.