United States v. Benjamin McCauley

United States Court of Appeals For the Eighth Circuit ___________________________

No. 18-2318 ___________________________

United States of America,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Benjamin Michael McCauley,

lllllllllllllllllllllDefendant - Appellant. ____________

Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids ____________

Submitted: March 7, 2019 Filed: March 18, 2019 [Unpublished] ____________

Before LOKEN, COLLOTON, and KOBES, Circuit Judges. ____________

PER CURIAM.

Benjamin McCauley appeals the sentence imposed by the district court1 after he pleaded guilty to a drug offense. His counsel has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967). McCauley has filed a pro se brief.

At sentencing, the district court granted the government’s motion for an upward departure under U.S.S.G. § 4A1.3(a), and denied McCauley’s requests for a downward departure or variance based on his mental health history and other characteristics. Counsel argues that the district court should have departed or varied downward, and that the court failed adequately to explain the extent of the upward departure. We lack authority to review the district court’s decision not to depart downward, as there is no indication that the court failed to recognize its authority to depart downward, see United States v. Lopez-Arce, 267 F.3d 775, 784 (8th Cir. 2001), and we conclude the district court did not abuse its discretion in denying a downward variance, as it addressed McCauley’s arguments and concluded a variance was not warranted, see United States v. Lewis, 593 F.3d 765, 773 (8th Cir. 2010). Further, we discern no plain error in the district court’s explanation of the upward departure. See United States v. Walking Eagle, 553 F.3d 654, 657 (8th Cir. 2009); see also United States v. Johnson, 648 F.3d 940, 944 (8th Cir. 2011).

As to McCauley’s pro se arguments, we reject his assertion that the district court judge was biased, see In re Steward, 828 F.3d 672, 682 (8th Cir. 2016), and we conclude that the district court did not deny his right to allocution, see United States v. Kaniss, 150 F.3d 967, 969 (8th Cir. 1998). Finally, we decline to consider

1 The Honorable Linda R. Reade, United States District Judge for the Northern District of Iowa.

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McCauley’s ineffective-assistance-of-counsel claims on direct appeal. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003).

Having independently reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), we find no non-frivolous issues for appeal. Accordingly, we grant counsel’s motion and affirm. ______________________________

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