1

The Honorable Linda R. Reade, Chief Judge, United States District Court for

the Northern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 06-2924

___________

United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * Northern District of Iowa.

*

Damarius Asim Simmons, * [UNPUBLISHED]

*

Appellant. *

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Submitted: December 13, 2007

Filed: December 18, 2007

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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

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PER CURIAM.

Damarius Simmons appeals the 270-month sentence the district court1

 imposed

after granting the government’s post-judgment Federal Rule of Criminal Procedure

35(b) motion to reduce his sentence based on substantial assistance. Simmons’s

counsel has moved to withdraw and has filed a brief under Anders v. California, 386

U.S. 738 (1967), arguing that the reduced sentence is unreasonable because (1) the

court did not adequately consider Simmons’s extraordinary cooperation or the danger

it posed to himself and his family; and (2) other defendants who have provided similar
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assistance have received much larger reductions. In a pro se supplemental brief,

Simmons argues that both the government’s recommendation of a 25% sentencing

reduction and the court’s decision to adopt that recommendation were

unconstitutionally motivated by racial animus. For support, he contends that the

Northern District of Iowa is notorious for granting smaller sentencing reductions to

blacks than whites, as allegedly shown in a Department of Justice (DOJ) report for the

years 1987 to 2004, and that his counsel deliberately ignored his request to obtain the

DOJ report and moved to withdraw, effectively depriving Simmons of his rights to

present evidence in the district court and to appeal.

To begin, we decline to consider any ineffective-assistance claim that Simmons

may be raising. See United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th

Cir. 2006) (court “will consider ineffective-assistance claims on direct appeal only

where the record has been fully developed, where not to act would amount to a plain

miscarriage of justice, or where counsel’s error is readily apparent”).

Further, while Simmons purports to challenge the reasonableness of his reduced

sentence, he is actually appealing the district court’s ruling on the government’s Rule

35(b) motion, which we lack jurisdiction to review. See United States v. Haskins, 479

F.3d 955, 957 (8th Cir. 2007) (per curiam) (court lacks jurisdiction to hear appeal of

district court’s decision on Rule 35(b) motion; United States v. Booker, 543 U.S. 220

(2005), did not expand 18 U.S.C. § 3742(a) to include appellate review of

discretionary sentencing reductions; although defendant framed issue as sentence’s

overall reasonableness, he was appealing district court’s ruling on motion to reduce

sentence). As to Simmons’s argument that the government’s sentencing

recommendation and the court’s sentencing decision were based on racial animus, we

conclude that he has made no showing of such motivation in the instant case. See

United States v. Williams, 324 F.3d 1049, 1050 (8th Cir. 2003) (per curiam) (court’s

refusal to depart further under U.S.S.G. § 5K1.1 is not reviewable unless defendant

makes substantial showing that court’s decision was based on unconstitutional
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motive); United States v. Marks, 244 F.3d 971, 973 n.1 (8th Cir. 2001) (court relies

on § 5K1.1 cases in analyzing application of Rule 35(b)); cf. Wade v. United States,

504 U.S. 181, 185-86 (1992) (district court may review government’s refusal to file

substantial-assistance motion and grant remedy if refusal to file is based on

unconstitutional motive, but mere showing that defendant provided substantial

assistance, whether standing alone or coupled with generalized allegations of

government’s improper motive, is insufficient).

Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,

80 (1988), we find no nonfrivolous issues for direct appeal. Accordingly, we grant

counsel’s motion to withdraw, and we affirm.

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