Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Robert L. Penebaker, Defendant-appellant, 886 F.2d 1317 (6th Cir. 1989)

ORDER

Penebaker's counsel moves to withdraw as counsel on appeal from the district court's judgment and sentence in this bank robbery case. 18 U.S.C. § 2113(a) (Supp. V 1987). Penebaker moves to appoint other counsel. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Penebaker pleaded guilty to one count of bank robbery. He received a twenty year sentence. On appeal, defense counsel has moved to withdraw and has filed an Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967). Penebaker has also filed a brief.

We have examined the briefs and the record. We agree with defense counsel that the plea was intelligent and voluntary. See Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). We also agree that the sentencing issue lacks merit because the district court chose not to consider any of the disputed issues when it sentenced Penebaker. See Fed. R. Crim. P. 32(c) (3) (D) (ii).

We have examined the issues in Penebaker's brief and hold that none of the issues raises a substantial question. Accordingly, the motion to withdraw as counsel is granted and the motion to appoint counsel is denied. The judgment of the district court is affirmed under Rule 9(b) (5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.