United States v. Marvin Spencer ( 2017 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-3435
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Marvin Spencer
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of Minnesota - St. Paul
____________
Submitted: September 7, 2017
Filed: September 12, 2017
[Unpublished]
____________
Before COLLOTON, BOWMAN, and BENTON, Circuit Judges.
____________
PER CURIAM.
Marvin Spencer was found guilty of robbery, conspiracy to commit robbery,
discharging a firearm during and in relation to a crime of violence, and being a felon
in possession of ammunition, all in violation of 18 U.S.C. §§ 371, 922(g)(1), 924(c),
and 1951. The district court1 sentenced Spencer to 257 months in prison. On appeal,
counsel challenges the sufficiency of the evidence and the reasonableness of the
sentence in a brief filed under Anders v. California, 386 U.S. 738 (1967). In his pro
se brief Spencer challenges the district court’s jurisdiction, counsel’s effectiveness,
and his 18 U.S.C. § 924(c) conviction in light of Johnson v. United States, 135 S. Ct.
2551 (2015). Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
The evidence at trial showed that Spencer and an associate took $58,358.50
worth of jewelry from a Minnesota store, and that Spencer shot a store employee in
the leg and fired additional shots in the air during the robbery. The evidence included
eye-witness testimony, video surveillance footage, and Spencer’s admissions, which
overwhelmingly supported the verdict. This court’s review of the record shows that
Spencer’s sentence was not unreasonable. See United States v. Feemster, 572 F.3d
455, 460-61 (8th Cir. 2009) (en banc) (standard of review). Spencer’s challenge to
the district court’s jurisdiction based on alleged indictment defects is meritless, his
claim of ineffective assistance is best deferred for collateral proceedings. See United
States v. Looking Cloud, 419 F.3d 781, 788-89 (8th Cir. 2005). His Johnson-based
challenge to his section 924(c) conviction is foreclosed by United States v. Prickett,
839 F.3d 697, 699 (8th Cir. 2016) (per curiam), petition for cert. filed, (U.S. Dec. 30,
2016) (No. 16-7373).
This court has reviewed the record independently under Penson v. Ohio, 488
U.S. 75, 80 (1988), and finds no non-frivolous issues.
The judgment is affirmed, counsel’s request to withdraw is granted, and
Spencer’s pending pro se motions are denied as moot.
______________________________
1
The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.
-2-