              United States Court of Appeals
                         For the Eighth Circuit
                     ___________________________

                             No. 18-2318
                     ___________________________

                         United States of America,

                    lllllllllllllllllllllPlaintiff - Appellee,

                                       v.

                       Benjamin Michael McCauley,

                   lllllllllllllllllllllDefendant - Appellant.
                                    ____________

                  Appeal from United States District Court
              for the Northern District of Iowa - Cedar Rapids
                               ____________

                         Submitted: March 7, 2019
                          Filed: March 18, 2019
                              [Unpublished]
                              ____________

Before LOKEN, COLLOTON, and KOBES, Circuit Judges.
                          ____________
PER CURIAM.

       Benjamin McCauley appeals the sentence imposed by the district court1 after
he pleaded guilty to a drug offense. His counsel has moved to withdraw and has filed
a brief under Anders v. California, 386 U.S. 738 (1967). McCauley has filed a pro se
brief.

      At sentencing, the district court granted the government’s motion for an upward
departure under U.S.S.G. § 4A1.3(a), and denied McCauley’s requests for a
downward departure or variance based on his mental health history and other
characteristics. Counsel argues that the district court should have departed or varied
downward, and that the court failed adequately to explain the extent of the upward
departure. We lack authority to review the district court’s decision not to depart
downward, as there is no indication that the court failed to recognize its authority to
depart downward, see United States v. Lopez-Arce, 267 F.3d 775, 784 (8th Cir. 2001),
and we conclude the district court did not abuse its discretion in denying a downward
variance, as it addressed McCauley’s arguments and concluded a variance was not
warranted, see United States v. Lewis, 593 F.3d 765, 773 (8th Cir. 2010). Further, we
discern no plain error in the district court’s explanation of the upward departure.
See United States v. Walking Eagle, 553 F.3d 654, 657 (8th Cir. 2009); see also
United States v. Johnson, 648 F.3d 940, 944 (8th Cir. 2011).

       As to McCauley’s pro se arguments, we reject his assertion that the district
court judge was biased, see In re Steward, 828 F.3d 672, 682 (8th Cir. 2016), and we
conclude that the district court did not deny his right to allocution, see United States
v. Kaniss, 150 F.3d 967, 969 (8th Cir. 1998). Finally, we decline to consider




      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

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McCauley’s ineffective-assistance-of-counsel claims on direct appeal. See United
States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003).

      Having independently reviewed the record under Penson v. Ohio, 488 U.S. 75
(1988), we find no non-frivolous issues for appeal. Accordingly, we grant counsel’s
motion and affirm.
                      ______________________________




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