                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-2025
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Southern District of Iowa.
Dennis Ray Graven,                       *
                                         *    [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                            Submitted: April 6, 2001
                                Filed: April 12, 2001
                                    ___________

Before RICHARD S. ARNOLD, HANSEN, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                           ___________

PER CURIAM.

      Dennis Ray Graven pleaded guilty to conspiring to distribute methamphetamine
and cocaine, in violation of 21 U.S.C. § 846, and the district court1 sentenced him to
120 months imprisonment (the statutory minimum) and 4 years supervised release. On
appeal, his counsel has filed a brief and moved to withdraw pursuant to Anders v.
California, 386 U.S. 738 (1967), and Graven has not filed a pro se supplemental brief.



      1
        The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
       Counsel challenges, on due process and separation-of-powers grounds, 18
U.S.C. § 3553(e)’s requirement of a government motion before the district court may
impose a sentence below the statutory minimum. This challenge is foreclosed by our
precedent. See United States v. Kelley, 956 F.2d 748, 752 (8th Cir. 1992) (en banc)
(upholding, against separation-of-powers and due process challenges, U.S.S.G.
§ 5K1.1 requirement of government motion before district court may depart from
Guidelines); see also United States v. Marks, No. 00-2242, 2001 WL 300562, at *1 n.1
(8th Cir. Mar. 29, 2001) (equating § 5K1.1 and § 3553(e)); Kelley, 956 F.2d at 751 n.3
(same).

       Having reviewed the record independently pursuant to Penson v. Ohio, 488 U.S.
75 (1988), we have found no nonfrivolous issues for appeal. Accordingly, we affirm
the judgment of the district court, and we grant counsel’s motion to withdraw.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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