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The Honorable Richard E. Dorr, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-3490

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

George Allen, *

* [UNPUBLISHED]

Appellant. *

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Submitted: April 4, 2008

Filed: April 10, 2008

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Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.

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PER CURIAM.

George Allen pleaded guilty to possessing heroin while incarcerated in a federal

correctional facility, in violation of 18 U.S.C. § 1791. The district court1

 imposed a

prison term of 27 months to run consecutively to his undischarged federal and state

terms of imprisonment, and a 3-year term of supervised release to run concurrently

with his undischarged federal term of supervised release. On appeal, Allen’s counsel

has filed a brief under Anders v. California, 386 U.S. 738 (1967), in which he requests

permission to withdraw and presents arguments related to the calculation of Allen’s
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base offense level under the Guidelines, the requirement that Allen’s sentence run

consecutively to his undischarged state sentence, and the denial of Allen’s motion to

withdraw his guilty plea.

We conclude that the district court properly determined Allen’s base offense

level to be 13. See U.S.S.G. § 2P1.2(a)(2) (base offense level of 13 applies if

contraband possessed in prison was narcotic drug); United States v. Blanton, 281 F.3d

771, 775 (8th Cir. 2002) (district court’s interpretation and application of Guidelines

reviewed de novo). Although the indictment mistakenly referred to 18 U.S.C.

§ 1791(b)(2), instead of § 1791(b)(1) (applicable when the offense involved narcotic

drug), Allen was not prejudiced by the mistake because he stated at the plea hearing

that he was not promised anything as to what his sentence would be, he conceded that

heroin is a narcotic drug, and he was sentenced at the bottom of the properly

calculated Guidelines range--well below both the 10-year maximum he acknowledged

and the correct 20-year statutory maximum. Cf. Fed. R. Crim. P. 7(c)(3) (unless

defendant was misled and thereby prejudiced, neither error in citation nor citation’s

omission is ground to dismiss indictment or to reverse conviction); United States v.

Czeck, 671 F.2d 1195, 1197 (8th Cir. 1982) (“An indictment is fatally insufficient

when an essential element ‘of substance’ is omitted, rather than one ‘of form’ only.”).

We further conclude there is no merit to Allen’s challenge to the requirement

that his new sentence run consecutively to his undischarged state sentence. See 18

U.S.C. § 1791(c) (“Any punishment imposed under subsection (b) for a violation of

this section by an inmate of a prison shall be consecutive to the sentence being served

by such inmate at the time the inmate commits such violation.”); U.S.S.G. § 5G1.3(a)

(if instant offense was committed while defendant was serving term of imprisonment,

sentence for instant offense shall be imposed to run consecutively to undischarged

term of imprisonment); Swepston v. United States, 289 F.2d 166, 168 (8th Cir. 1961)

(right to impose consecutive sentences is inherent in federal courts).
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We also conclude that the district court did not abuse its discretion in denying

Allen’s motion to withdraw his guilty plea, because during the plea hearing, Allen

confirmed his understanding of--among other things--the possibility of a consecutive

sentence of up to 10 years in prison and the limitations on his ability to withdraw a

guilty plea. See Fed. R. Crim. P. 11(d)(2)(B) (defendant may withdraw plea if he can

show fair and just reason for requesting withdrawal); United States v. Moore, 481

F.3d 1113, 1114 (8th Cir.) (abuse-of-discretion standard; guilty plea should not be set

aside lightly; affirming district court’s denial of request to withdraw plea and rejecting

defendant’s claim that he did not fully understand ramifications of plea where district

court fully advised him of those ramifications at plea hearing and defendant testified

under oath that he understood them), cert. denied, 128 S. Ct. 122 (2007). 

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

80 (1988), we find no nonfrivolous issues. Accordingly, we affirm the district court’s

judgment and we grant counsel’s request to withdraw on condition that counsel inform

appellant about the procedures for filing petitions for rehearing and for certiorari.

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