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The Honorable Susan Webber Wright, United States District Judge for the

Eastern District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 06-4192

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Dondrick Alex James, *

also known as Duck, * [UNPUBLISHED]

*

Appellant. *

___________

Submitted: February 7, 2008

Filed: March 6, 2008

___________

Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.

___________

PER CURIAM.

Dondrick Alex James pleaded guilty to aiding and abetting the distribution of

cocaine base, in violation of 21 U.S.C. § 841. The district court1

 sentenced him to 210

months in prison and 5 years of supervised release. On appeal, his counsel has moved

to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing

that the court erred by applying an obstruction-of-justice enhancement and by failing

to award a reduction for acceptance of responsibility. In his pro se brief, James argues
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that the obstruction-of-justice enhancement was a factor used to increase his sentence

based upon a preponderance of the evidence, in violation of United States v. Booker,

543 U.S. 220 (2005), and that the government breached the plea agreement by

advocating for the enhancement. James has also moved for appointment of new

counsel and to “deny” counsel’s Anders brief. 

We review for clear error the district court’s findings with respect to the

obstruction-of-justice increase and an acceptance-of-responsibility reduction. See

United States v. Nguyen, 339 F.3d 688, 690 (8th Cir. 2003) (generally acceptance of

responsibility is not present when defendant receives enhancement for obstruction of

justice, but court may adjust for both provisions in “extraordinary case”). The district

court did not err in assessing the enhancement and denying the reduction: while he

was out on bond pending sentencing in this matter, James used drugs, was discharged

from a drug rehabilitation program for violating rules, and failed to appear at his

ensuing revocation hearing resulting in his arrest. See id. at 689, 691-92 (district court

did not err in refusing to grant acceptance-of-responsibility reduction where one

month before trial defendant absconded for 15 months, did not voluntarily turn

himself in, and did not clearly accept responsibility for obstructive conduct); United

States v. Thomas, 72 F.3d 92, 93 (8th Cir. 1995) (per curiam) (defendant’s absconding

from supervision while on bond warranted obstruction-of-justice enhancement);

U.S.S.G. § 3C1.1, comment. (n.4(e)) (obstruction enhancement applies if defendant

willfully fails to appear, as ordered, for judicial hearing).

We also conclude that James’s pro se assertions fail. See United States v.

Pirani, 406 F.3d 543, 551 n.4 (8th Cir. 2005) (en banc) (“Nothing in Booker suggests

that sentencing judges are required to find sentence-enhancing facts beyond a

reasonable doubt under the advisory Guidelines regime.”); United States v.

Archambault, 344 F.3d 732, 737 (8th Cir. 2003) (counsel’s failure to argue

plea-agreement breach at sentencing waived issue).
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Having reviewed the record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we

find no nonfrivolous issues. Accordingly, we affirm the district court’s judgment, we

deny James’s motions, we dismiss counsel’s motion to withdraw as moot since

counsel has unfortunately died in the meantime, and call James' attention to the fact

that he has the right to file petitions for rehearing and for writ of certiorari. See

attached Plan to Implement the Criminal Justice Act of 1964 section V (as amended

Dec. 6, 1994).

______________________________
cjaplan.amd

 

 

 

 

 PLAN

 

 UNITED STATES COURT OF APPEALS

 EIGHTH CIRCUIT

 

 AMENDMENT TO PART V OF THE PLAN

 TO IMPLEMENT THE CRIMINAL

 JUSTICE ACT OF 1964

 

 _______

 

 

 

 Adopted December 6, 1994

 

 V. Duty of Counsel as to Certiorari.

 

 The representation of counsel on appeal, where the

 appeal has been unsuccessful, shall extend to advising

 the defendant of the right to file a petition for a writ

 of certiorari in the Supreme Court of the United States,

 and to informing the defendant of counsel's opinion as to

 the merit and likelihood of the success thereof. If the

 defendant so requests, and if counsel determines that

 there is a reasonable likelihood that a petition for a

 writ of certiorari will be granted (applying the

 standards set forth in Rule 10 of the rules of the

 Supreme Court of the United States), representation shall

 also extend to the preparing and filing of such a

 petition.

 

 If counsel declines to file a petition for a writ of

 certiorari requested by the defendant based upon

 counsel's determination that there is not reasonable

 likelihood it will be granted, counsel shall so inform

 the Court and shall file a written motion to withdraw,

 accompanied by counsel's certification that a copy of the

 motion was furnished to the defendant. If the motion to

 withdraw is granted, counsel shall promptly advise the

 defendant of the procedures for filing a petition for a

 writ of certiorari pro se, following which counsel's

 representation of the defendant shall terminate.

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