United States v. Jose Martinez

PER CURIAM. Jose Martinez directly appeals after he pled guilty to a drug offense and the district court 1 sentenced him to a term of imprisonment within the Guidelines range that was calculated in part based on a U.S.S.G. § 5K1.1 downward departure. *447 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), generally arguing that the district court abused its discretion in sentencing Martinez, and specifically suggesting that the court procedurally erred in calculating Martinez’s criminal-history points. Upon careful review, we conclude that the district court committed no procedural error, much less plain error in sentencing Martinez, and that no abuse of discretion occurred. See United States v. Feemster, 572 F.3d 455, 461-62, 464 (8th Cir.2009) (en banc) (describing appellate review of sentencing decisions); see also United States v. Phelps, 536 F.3d 862, 865 (8th Cir.2008) (if defendant fails to timely object to procedural sentencing error, error may only be reviewed for plain error); United States v. Berni, 439 F.3d 990, 993 (8th Cir.2006) (per curiam) (addressing reasonableness of sentence involving § 5K1.1 downward departure). Accordingly, we affirm. As for counsel’s motion to withdraw, we conclude that allowing counsel to withdraw at this time would not be consistent with the Eighth Circuit’s 1994 Amendment to Part V of the Plan to Implement the Criminal Justice Act of 1964. We therefore deny counsel’s motion to withdraw as premature, without prejudice to counsel refiling the motion upon fulfilling the duties set forth in the Amendment. Footnotes [1] The Honorable Timothy L. Brooks, United States District Judge for the Western District of Arkansas.