Opinion
No. 06-3693.
Submitted: November 6, 2007.
Filed: November 13, 2007.
Appeal from the United States District Court for the Western District of Arkansas.
Kenneth Elser, U.S. Attorney's Office, Fort Smith, AR, for Appellee.
Robert L. Depper, Jr., Depper Law Firm, El Dorado, AR, for Appellant.
Before BYE, RILEY, and MELLOY, Circuit Judges.
[UNPUBLISHED]
After Johnny L. Cornelious (Cornelious) pled guilty to distributing more than 5 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), the district court sentenced Cornelious to 87 months in prison and 5 years of supervised release. On appeal, Cornelious's counsel filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and moved to withdraw. Cornelious filed a pro se supplemental brief. For the reasons discussed below, we reject all of the arguments raised on appeal, and we grant counsel's withdrawal motion.
The Honorable Harry F. Barnes, United States District Judge for the Western District of Arkansas.
First, the sentencing transcript shows Cornelious was held responsible for only 5-20 grams of cocaine base, consistent with the amounts in the indictment and plea agreement. Second, Cornelious's claim he was never provided with a copy of the presentence report is not supported by the record. Third, a direct criminal appeal is not a vehicle to remedy an alleged information leak by the government that has caused a defendant past hardship in prison. Fourth, matters to which defense counsel made and withdrew objections below — the application of an aggravating-role enhancement and the calculation of the criminal history score — are deemed intentionally relinquished or abandoned and need not be reviewed on appeal. See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Tulk, 171 F.3d 596, 600 (8th Cir. 1999). Fifth, Cornelious's claim of ineffective assistance of counsel must be raised, if at all, in a 28 U.S.C. § 2255 motion. See United States v. Ramirez-Hernandez, 449 F.3d 824, 827 (8th Cir. 2006).
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we conclude there are no nonfrivolous issues for appeal. We affirm the judgment of the district court and grant counsel's motion to withdraw.