1 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. 08-1738

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Kevin Lamar Blackmon, * * [UNPUBLISHED] Appellant. *

___________ Submitted: August 7, 2009 Filed: August 14, 2009

___________ Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.

___________ PER CURIAM. Kevin Lamar Blackmon appeals the 188- month prison sentence the district
court 1 imposed after he pleaded guilty to aiding and abetting the March 2005 distribution of crack cocaine, in violati on of 18 U.S.C. § 2 a nd 21 U.S.C. § 841(a)(1). His counsel has moved to w ithdraw and filed a brief under Anders v. California , 386 U.S. 738 (1967), questioning the reasonableness of the sentence. In pro se filings, Blackmon moves for substitute appellate counsel and argues that his 1991 Arkansas conviction for second-degree battery was erroneously counted as one of the two-2- necessary predicate offenses for a career-offender enhancement under U.S.S.G. § 4B1.1; that his criminal history poi nts and non-career-offender offense level were incorrectly calculated; that his more culp able co-defendant received a considerably lower sentence; and that his counsel provide d ineffective assistance. For the reasons discussed below, we affirm.

First, the district court did not err in counting the 1991 conviction as a careeroffender predicate offense. See U.S.S.G. § 4B1.1(a) (defenda nt is career offender if, inter alia, he has at least two prior fe lony convictions for crime of violence or controlled-substance offense) , § 4B1.2, comment. (n.3) (provisions of § 4A1.2 are applicable to counting of convictions under § 4B1.1); United States v. Adams , 509 F.3d 929, 931 (8th Cir. 2007) (district c ourt’s interpretation and application of Guidelines is reviewed de novo and its findi ngs of fact are reviewed for clear error). The conviction was a felony for purposes of the career-offender enhancement. See U.S.S.G. § 4B1.2, comment. (n.1) (prior felony conviction in § 4B1.1 means, as relevant, state conviction for offense puni shable by prison term exceeding 1 year, regardless of actual sentence imposed); Ark. Code Ann. § 5-13-202(b) (second-degree battery is Class D felony) , § 5-4-401(a)(5) (for Class D felony, sentence shall not exceed 6 years). Further, the probation Blackmon initially received on the 1991 conviction was revoked in 1993, and he served at least a portion of the 3-year prison term imposed upon revocation. See U.S.S.G. § 4A1.2(e)(1) (any prior prison sentence exceeding 1 year and 1 month that either wa s imposed or resulted in defendant’s being incarcerated within 15 years of defendan t’s commencement of instant offense is counted); § 4A1.2(k)(1), (2)(B) (in case of prior probation revocation, add any original prison term to any prison term imposed upon revocation; probation revocation may affect time period for which certain sentences are counted under § 4A1.2(e)); § 4A1.2, comment. (n.2) (to qualify as sent ence of imprisonment, defendant must have actually served period of imprisonment on sentence; length of sentence is based on sentence pronounced, not on time actually served).-3- Next, Blackmon’s arguments concerning his offense level and criminal history scoring are moot in light of the career-offender enhancement. SeeU.S.S.G. § 4B1.1(b) (career offender’s criminal hi story category shall be Category VI; careeroffender offense level shall apply if greater than otherwis e applicable offense level); United States v. Shepard , 462 F.3d 847, 872 (8th Cir. 2006) (challenge to determination of non-career-o ffender base offense level is rendered moot by proper application of career-offender Guideline). Any ineffective-assistance claim should be presented in 28 U.S.C. § 2255 proceedings. SeeUnited States v. Ramirez-Hernandez , 449 F.3d 824, 827 (8th Cir. 2006).

Finally, the district court did not co mmit any significant procedural error in imposing sentence, and nothing in the record --including the disparity between the codefendants’ sentences--rebuts the appellatepresumption that Blackmon’s withinGuidelines-range sentence is s ubstantively reasonable. SeeUnited States v. MaganaAguirre , 546 F.3d 957, 959-60 (8th Cir. 2008) (sta ndard of review); United States v. Gallegos , 480 F.3d 856, 859 (8th Cir. 2007) (per curiam) (only unwarranted sentencing disparities are prohibited, and disparity between co-defendants is not unwarranted where it is due in part to different criminal history categories).

Having reviewed the record i ndependently under Penson v. Ohio , 488 U.S. 75 (1988), we have found no nonfrivolous issues. Accordingly, we affirm the district court’s judgment; we deny Blackmon’s motion for appointment of substitute appellate counsel; and we grant counsel’s motion to withdraw, subject to counsel informing Blackmon about procedures for seeking re hearing and filing a petition for certiorari.

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