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Counsel's motion to withdraw granted in defendant's appeal of his sentence for heroin conviction
US v. Webster, 10-1148, concerned a prosecution of defendant for distributing heroin wherein he was sentenced to 151-months' imprisonment and 6 years of supervised release, based on a "prior conviction" for a felony offense in Wisconsin for another heroin sale that occurred several days before the current offense.
In dismissing the defendant's notice of appeal and granting his counsel's motion to withdraw, the court held that, although the district court erred in concluding that defendant was subject to a minimum of 6 years of supervised release, and not 3, because the information relied on a conviction for a charge that had not even been filed when defendant committed the federal crime, any attempt by defendant to skirt the effect of section 851(c)(2) would be frivolous. Further, even if the potential issue is not waived entirely by application of section 851(c)(2), the question is nevertheless frivolous when scrutinized under the plain-error standard because, with or without the Information filed by the government, the district court could have imposed a term of 6 years of longer. Lastly, the court held that defendant's challenge to the reasonableness of his prison sentence would be frivolous as his prison term is within the properly calculated guidelines range and is presumptively reasonable.
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