                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 05-3290
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Minnesota.
Duke Patrick Soby,                        *
                                          * [UNPUBLISHED]
             Appellant.                   *
                                     ___________

                               Submitted: June 7, 2007
                                  Filed: June 13, 2007
                                   ___________

Before SMITH, GRUENDER, and SHEPHERD, Circuit Judges
                           ___________

PER CURIAM.

       Duke Soby appeals the sentence the district court1 imposed upon his guilty plea
to possession with intent to distribute in excess of 50 grams of methamphetamine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). His counsel has moved to withdraw and
has filed a brief under Anders v. California, 386 U.S. 738 (1967). For reversal,
counsel argues that the district court should not have assigned Soby more than 1
criminal history point, and that he was therefore eligible for safety-valve relief. In his


      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
pro se supplemental brief, Soby contends that his counsel below was ineffective and
that the PSR’s recommended weapons enhancement has jeopardized his chances for
certain benefits. We reject these arguments and affirm the sentence.

       The district court did not clearly err in its calculation of Soby’s criminal history
points. See United States v. Borer, 412 F.3d 987, 991-92 (8th Cir. 2005) (standard of
review). First, the court properly assessed 1 point for Soby’s prior DWI conviction,
for which he was sentenced in 1999, because the sentence was imposed within 10
years of Soby’s commencement of the instant offense, see U.S.S.G. § 4A1.2(e)(2), and
Soby has not met his burden of showing that the conviction was constitutionally
invalid, see U.S.S.G. § 4A1.2 cmt. (n.6) (sentences resulting from convictions that
have been ruled constitutionally invalid in prior case should not be counted); United
States v. Strange, 102 F.3d 356, 362-63 (8th Cir. 1996) (“bare bones” argument
unsupported by authority does not satisfy defendant’s burden of demonstrating that
state-court conviction was constitutionally infirm). Second, Soby’s convictions for
driving with a cancelled license--for which he was arrested on July 23, 1995, and
sentenced on October 18, 1995--and for aggravated DWI--for which he was arrested
on September 3, 1995, and sentenced on January 28, 1999--were properly treated as
unrelated and assessed 1 criminal history point each. See U.S.S.G. § 4A1.2(a)(2)
(“Prior sentences imposed in unrelated cases are to be counted separately. Prior
sentences imposed in related cases are to be treated as one sentence[.]”); United States
v. Newsome, 409 F.3d 996, 999 (8th Cir. 2005) (cases formally consolidated for
sentencing may be considered related under § 4A1.2(a)(2), but where offenses are
separated by intervening arrests, they are unrelated). The 3 points resulting from the
aforementioned convictions were more than enough to make Soby ineligible for
safety-valve relief and subject to the mandatory minimum sentence. See 21 U.S.C.
§ 841(b)(1)(A) (10-year mandatory minimum sentence); U.S.S.G. § 5C1.2(a)(1) (one
requirement for safety-valve relief is that defendant not have more than 1 criminal
history point); United States v. Chacon, 330 F.3d 1065, 1066 (8th Cir. 2003) (only
authority for district court to depart below statutory minimum is when government

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moves for downward departure based on substantial assistance or defendant qualifies
for safety-valve relief).

       As for Soby’s pro se arguments, we adhere to the general rule that Soby must
raise his claim of ineffective assistance of counsel in a 28 U.S.C. § 2255 proceeding,
where the record can be properly developed. See United States v. Hughes, 330 F.3d
1068, 1069 (8th Cir. 2003). In addition, Soby provides no support, and we have found
none, for his contention that the weapons-enhancement recommendation in the PSR--
which the district court declined to adopt--has jeopardized his eligibility for any
benefits.

      Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no non-frivolous issues. Accordingly, we grant counsel’s motion
to withdraw, and we affirm. We also deny Soby’s motion for appointment of new
appellate counsel.
                       ______________________________




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