                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-1988
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
Damon Lemont Thomas,                     *
                                         *      [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: September 29, 2009
                                 Filed: October 2, 2009
                                  ___________

Before WOLLMAN, RILEY, and SMITH, Circuit Judges.
                           ___________

PER CURIAM.

       Damon Thomas (Thomas) pled guilty to conspiracy to commit arson, in
violation of 18 U.S.C. § 844(i) and (n). The district court1 sentenced Thomas to the
statutory minimum of 5 years in prison. On appeal, Thomas’s counsel seeks
permission to withdraw and has filed a brief under Anders v. California, 386 U.S. 738
(1967), identifying as possible issues for review the district court’s entry of Thomas’s
guilty plea and the sentence imposed. Thomas has filed a pro se supplemental brief.



      1
       The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
       First, we conclude that the court did not abuse its discretion in handling
Thomas’s guilty plea. See United States v. Gray, 152 F.3d 816, 819 (8th Cir. 1998)
(stating the standard for reviewing denial of motion to withdraw guilty plea). Thomas
admitted his guilt both in his plea agreement and at the plea hearing, and confirmed
he was voluntarily pleading guilty. While Thomas initially may have been confused
about the minimum penalty, we note the district court provided Thomas ample time
to gain an understanding of the statutory penalties. At sentencing, Thomas expressly
acknowledged the minimum sentence was 5 years in prison, and expressly stated he
wanted to persist in his guilty plea. See Blackledge v. Allison, 431 U.S. 63, 74 (1977)
(“Solemn declarations in open court carry a strong presumption of verity.”); United
States v. Morrison, 967 F.2d 264, 268 (8th Cir. 1992) (“When a defendant has entered
a knowing and voluntary plea of guilty at a hearing at which he acknowledged
committing the crime, ‘the occasion for setting aside a guilty plea should seldom
arise.’” (citation omitted)); cf. United States v. Gray, __ F.3d __, __, No. 08-3598,
2009 WL 2986743, at **5-6 (8th Cir. Sept. 21, 2009) (per curiam) (finding reversible
error where the court “omitted mention of any maximum penalty” at change-of-plea
hearing and overruled defendant’s repeated objections at sentencing that he was
unaware of maximum penalty when he pled guilty and did not wish to persist in his
guilty plea).

       Second, as to Thomas’s sentence, we conclude the district court lacked
discretion to sentence Thomas below the statutory minimum of 5 years in prison. See
United States v. Gregg, 451 F.3d 930, 937 (8th Cir. 2006) (rejecting an argument that
the district court had discretion to determine whether the ultimate sentence is
reasonable and impose a non-Guidelines sentence even when a portion of the sentence
is the result of a mandatory minimum sentence and noting United States v. Booker,
543 U.S. 220 (2005), does not relate to statutorily imposed sentences); see also United
States v. Chacon, 330 F.3d 1065, 1066 (8th Cir. 2003) (explaining the only authority
for the district court to depart from a statutory minimum sentence is found in



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§ 3553(e) and (f), which apply only when the government makes a motion for
substantial assistance or defendant qualifies for safety-valve relief).

       Finally, to the extent Thomas’s pro se brief asserts ineffective assistance of
counsel or that his guilty plea was involuntary, we decline to review these claims on
direct appeal. See United States v. McAdory, 501 F.3d 868, 872 (8th Cir. 2007)
(declaring an appellate court ordinarily defers ineffective-assistance claims to 28
U.S.C. § 2255 proceedings); United States v. Murphy, 899 F.2d 714, 716 (8th Cir.
1990) (stating a claim that a guilty plea was involuntary is not cognizable on direct
appeal unless first presented to district court).

      Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues. We affirm the district court’s judgment
and we grant counsel’s request to withdraw.
                      ______________________________




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