UNITED STATES v. SURAJBALLY (2019)

United States Court of Appeals, Eighth Circuit.

UNITED STATES of America Plaintiff-Appellee v. Anthony SURAJBALLY Defendant-Appellant

No. 19-1499

Decided: September 16, 2019

Before LOKEN, COLLOTON, and GRASZ, Circuit Judges. William Reiser Ripley, U.S. Attorney's Office, Davenport, IA, for Plaintiff-Appellee Anthony Surajbally, Pro Se Stephen Arthur Swift, Klinger & Robinson, Cedar Rapids, IA, for Defendant-Appellant

[Unpublished]

Anthony Surajbally appeals after he pled guilty to a drug offense, and the district court ¹ sentenced him to a prison term below the range calculated under the United States Sentencing Guidelines Manual (“Guidelines”). His counsel has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing the district court imposed a substantively unreasonable sentence and erred in not granting a larger downward variance. In his pro se supplemental briefs, Surajbally argues the district court erred in calculating his base offense level because the drug-quantity calculation was incorrect, and the government breached the plea agreement.

Turning first to Surajbally’s pro se arguments, we conclude he waived his challenges to the drug-quantity calculation. See United States v. Hipolito-Sanchez, 998 F.2d 594, 596 (8th Cir. 1993) (per curiam) (holding defendant who withdrew objection to presentence report’s drug-quantity determination at sentencing waived right to challenge amount on appeal). We also conclude the government did not breach the plea agreement. See United States v. Raifsnider, 915 F.3d 1186, 1188 (8th Cir. 2019) (per curiam) (standard of review). As to the arguments in the Anders brief, we conclude the district court did not impose a substantively unreasonable sentence. See United States v. Feemster, 572 F.3d 455, 461-62 (8th Cir. 2009) (en banc) (reviewing sentence under deferential abuse-of-discretion standard and discussing substantive reasonableness); see also United States v. McCauley, 715 F.3d 1119, 1127 (8th Cir. 2013) (noting when district court has varied below Guidelines range, it is “nearly inconceivable” that court abused its discretion in not varying downward further). In addition, having independently reviewed the record under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous issues for appeal. Accordingly, we affirm.

FOOTNOTES

1.   The Honorable Stephanie M. Rose, United States District Judge for the Southern District of Iowa.

PER CURIAM.