U.S. v. PERRY, 231 Fed.Appx. 537 (8th Cir. 2007)
UNITED STATES of America, Appellee, v. Roger Roy PERRY, Appellant.
No. 06-3061.United States Court of Appeals, Eighth Circuit.Submitted: August 10, 2007.
Filed: August 16, 2007.
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
Appeal from the United States District Court for the Western District of Missouri.Page 538
Ann M. Koszuth, Asst. Fed. Public Defender, Springfield, MO (Raymond C. Conrad, Jr., Fed. Public Defender, Kansas City, MO, on the brief), for appellant.
Roger Roy Perry, Joplin, MO, pro se.
Richard E. Monroe, Asst. U.S. Atty., Springfield, MO, for appellee.
Before MURPHY, SMITH, and SHEPHERD, Circuit Judges.
[UNPUBLISHED]
PER CURIAM.
Roger Roy Perry pleaded guilty to possessing counterfeit currency, in violation of 18 U.S.C. § 472, and conspiring to make and possess counterfeit currency, in violation of18 U.S.C. §§ 371 and 471-472. The district court[fn1] sentenced him within the advisory Guidelines range to 51 months in prison and 3 years of supervised release. Perry challenges that sentence on appeal. His counsel has filed a brief underAnders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967), and has moved to withdraw, and Perry has filed a pro se supplemental brief. For the reasons discussed below, we affirm.
First, the district court's discretionary denial of Perry's downward-departure motion is unreviewable. See United Statesv. Morell, 429 F.3d 1161, 1164 (8th Cir. 2005). Also, Perry has not overcome the appellate presumption of reasonableness that attaches to his sentence by showing that the court committed a clear error of judgment in determining that a within-Guidelines-range sentence was appropriate despite his poor health. See Rita v. United States, — U.S.,127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007); United Statesv. Haack, 403 F.3d 997, 1003-04 (8th Cir. 2005). Next, the district court was entitled to engage in judicial fact-finding within an advisory Guidelines system. See United States v.Fazio, 487 F.3d 646, 657 (8th Cir. 2007). Last, Perry has not made a substantial threshold showing that the government acted unconstitutionally or in bad faith by not filing a substantial-assistance downward-departure motion. See UnitedStates v. Marks, 244 F.3d 971, 976 (8th Cir. 2001). After reviewing the record independently pursuant to Penson v.Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we conclude that there are no non-frivolous issues for appeal. Accordingly, we affirm the judgment of the district court, and we grant counsel's motion to withdraw.
[fn1] The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri.