United States v. Roger Roy Perry

PER CURIAM. Roger Roy Perry pleaded guilty to possessing counterfeit currency, in violation of 18 U.S.C. § 472, and conspiring to make and possess counterfeit currency, in violation of 18 U.S.C. §§ 371 and 471-472. The district court 1 sentenced him within the advisory Guidelines range to 51 months in prison and 3 years of supervised release. Perry challenges that sentence on appeal. His counsel has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and has moved to withdraw, and Perry has filed a pro se supplemental brief. For the reasons discussed below, we affirm. First, the district court’s discretionary denial of Perry’s downward-departure motion is unreviewable. See United States v. Morell, 429 F.3d 1161, 1164 (8th Cir.2005). Also, Perry has not overcome the appellate presumption of reasonableness that attaches to his sentence by showing that the court committed a clear error of judgment in determining that a within-Guidelines-range sentence was appropriate despite his poor health. See Rita v. United States, — U.S. —, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007); United States v. Haack, 403 F.3d 997, 1003-04 (8th Cir. 2005). Next, the district court was entitled to engage in judicial fact-finding within an advisory Guidelines system. See United States v. Fazio, 487 F.3d 646, 657 (8th Cir.2007). Last, Perry has not made a substantial threshold showing that the government acted unconstitutionally or in bad faith by not filing a substantial-assistance downward-departure motion. See United States v. Marks, 244 F.3d 971, 976 (8th Cir.2001). After reviewing the record independently pursuant to Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we conclude that there are no non-frivolous issues for appeal. Accordingly, we affirm the judgment of the district court, and we grant counsel’s motion to withdraw. Footnotes [1] The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri.