582 F. App'x 667

8th Cir.

2014

UNITED STATES of America, Plaintiff-Appellee, v. David Edward ADNEY, Defendant-Appellant.

No. 14-1958.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 4, 2014. Filed: Nov. 7, 2014.

585 Fed. Appx. 667

Anthony R. Morfítt, U.S. Attorney‘s Office, Cedar Rapids, IA, for Plaintiff-Appellee. David Edward Adney (Federal Prisoner: 13368-029), Oklahoma City, OK, pro se. Joseph Herrold, Assistant, Federal Public Defender‘s Office, Des Moines, IA, for Defendant-Appellant. Before LOKEN, MELLOY, and GRUENDER, Circuit Judges.

PER CURIAM.

David Edward Adney directly appeals the sentence imposed by the district court¹ after he pleaded guilty to being a felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). His counsel has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and a motion to withdraw. After careful review, we affirm.

The district court did not err in applying a 4-level enhancement for possessing the firearms in connection with another felony offense, as the record showed that the firearms facilitated or had the potential to facilitate Adney‘s commission of the felony offense of harassment in the first degree. See U.S.S.G. § 2K2.1(b)(6)(B) & comment. (n.14); United States v. Betts, 509 F.3d 441, 445 (8th Cir.2007) (de novo review of district court‘s application of Guidelines, and clear-error review of its factual findings); Iowa Code §§ 708.7.2, 903.1.2 (harassment in first degree; 0-2 year prison sentence). The district court did not abuse its discretion in granting the government‘s motion for an upward departure, as Adney‘s 15 unscored adult convictions—many of which involved violence or threats thereof—provided an adequate basis for departure, and the court stated adequate reasons for the extent of the departure. See United States v. Gonzalez, 573 F.3d 600, 605-06 (8th Cir.2009) (standard of review; district court may take into account evidence of obvious incorrigibility and may conclude that past leniency has not been effective); United States v. Walking Eagle, 553 F.3d 654, 657-58 (8th Cir.2009) (finding no error in upward departure, as defendant‘s multiple unscored convictions for assaults, threats, and assaulting officer indicated that he was dangerous to others and had strong likelihood of recidivism). Finally, the district court did not abuse its discretion in sentencing Adney at the top of his amended Guidelines range, as the court provided a detailed explanation of its sentence, emphasizing Adney‘s violent and abusive history, and the dangerous, potentially fatal circumstances of this offense. See Gonzalez, 573 F.3d at 605, 607 (standard of review); United States v. Feemster, 572 F.3d 455, 464 (8th Cir.2009) (en banc) (substantive review is narrow and deferential to sentencing court).

An independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), reveals no nonfrivolous issues for appeal.

Accordingly, the judgment is affirmed. Counsel‘s motion to withdraw is granted.

UNITED STATES of America, Plaintiff-Appellee, v. Bruce Francis PREVOST, Defendant-Appellant.

No. 13-3762.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 31, 2014. Filed: Nov. 10, 2014.

585 Fed. Appx. 668

Robert Mathias Lewis, U.S. Attorney‘s Office, Saint Paul, MN, Timothy Christopher Rank, Kimberly A. Svendsen, U.S. Attorney‘s Office, Minneapolis, MN, for Plaintiff-Appellee. Frederick J. Goetz, Goetz & Eckland, Minneapolis, MN, for Defendant-Appellant. Bruce Francis Prevost, Palm Beach Gardens, FL, pro se. Before LOKEN, MELLOY, and GRUENDER, Circuit Judges.

PER CURIAM.

In this direct criminal appeal, Bruce Prevost challenges the 90-month prison sentence the district court¹ imposed after he pleaded guilty to aiding and abetting securities fraud. We grant Prevost‘s motion to expand the record. For the following reasons, we conclude that the district court did not commit plain procedural error, see United States v. Troyer, 677 F.3d 356, 358-59 (8th Cir.2012) (review for plain error when defendant did not object at sentencing), and that the sentence is substantively reasonable, see United States v. Heath, 624 F.3d 884, 886-87 (8th Cir.2010) (abuse-of-discretion standard).

Prevost argues it was procedural error for the district court to vary from the Sentencing Guidelines range based on factors listed in 18 U.S.C. § 3553(a), before departing based on substantial assistance under U.S.S.G. § 5K1.1(a)(1). Without deciding whether there was error, we conclude that Prevost has not shown prejudice because nothing in the record suggests that, but for the alleged error, his sentence

Notes

The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa. The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota.