                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-3046
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                    Damon O'Neil

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the Southern District of Iowa - Davenport
                                  ____________

                           Submitted: February 27, 2015
                              Filed: March 13, 2015
                                  [Unpublished]
                                  ____________

Before SMITH, GRUENDER, and BENTON, Circuit Judges.
                          ____________

PER CURIAM.

       In this appeal following remand for resentencing based on Alleyne v. United
States, 133 S. Ct. 2151 (2013) error, see United States v. O’Neil, 549 Fed. Appx. 595
(8th Cir. 2014) (unpublished per curiam), counsel for Damon O’Neil moves for leave
to withdraw under Anders v. California, 386 U.S. 738 (1967), raising several
challenges to O’Neil’s drug conspiracy conviction and sentence. O’Neil has filed a
pro se supplemental brief, and he moves for new appointed counsel, and for
discovery. For the reasons discussed below, we affirm the judgment; we grant
counsel’s motion to withdraw; and we deny as moot O’Neil’s pending motions.

       For reversal, counsel raises a challenge to the sufficiency of the evidence
supporting O’Neil’s conviction. This issue, however, not only falls outside the scope
of our remand order, see O’Neil, 549 Fed. Appx. at 596, but we rejected a sufficiency
of-the-evidence challenge in the first appeal; the issue is therefore not properly before
us, see United States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995). Next, counsel
argues that the government should have withdrawn its 21 U.S.C. § 851 sentence-
enhancement notice due to a policy change in the United States Justice Department.
Even setting aside whether that issue is properly before us in this limited appeal
following remand, we are unaware of any authority conferring enforceable rights on
defendants to enforce such a policy. Cf. United States v. Leathers, 354 F.3d 955, 962
(8th Cir. 2004). That argument also fails.

       As to the sentence itself, see United States v. Feemster, 572 F.3d 455, 461 (8th
Cir. 2009) (en banc) (appellate review of sentencing decision), counsel in his Anders
brief, and O’Neil in his pro se brief, challenge the district court’s1 drug quantity
determination at the resentencing hearing, and the court’s conclusion that O’Neil was
subject to sentencing enhancements for playing an aggravating role in the offense and
intimidating a witness. Any error in these findings, however, would be harmless,
because the court ultimately calculated a Guidelines range corresponding to O’Neil’s




      1
       The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.

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career-offender status.2 See United States v. Rodriguez, 711 F.3d 928, 939 (8th Cir.
2013).

      Counsel also argues that O’Neil’s criminal history was overstated, and that the
sentence is substantively unreasonable. The court’s discretionary decision not to
depart based on an overstated criminal history, however, is unreviewable, see United
States v. Wanna, 744 F.3d 584, 589 (8th Cir. 2014); and the sentence imposed,
representing the district court’s decision to vary significantly below the Guidelines
career-offender advisory sentencing range, is not substantively unreasonable, see
United States v. Zauner, 688 F.3d 426, 429 (8th Cir. 2012). Finally, upon
independently reviewing the record in accordance with Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues.

     Accordingly, we grant counsel’s motion to withdraw, we deny O’Neil’s
motions as moot, and we affirm.
                     ______________________________




      2
       The career-offender offense level is tied to the applicable statutory maximum
penalty, see U.S.S.G. § 4B1.1, which in turn is driven by the jury’s drug quantity
finding and the dictates of 21 U.S.C. § 841.

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