United States v. Zachary Love ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3581
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Zachary Joseph Love, also known as Zackary Joseph Love
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: July 20, 2017
Filed: July 25, 2017
[Unpublished]
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Before GRUENDER, BOWMAN and SHEPHERD, Circuit Judges.
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PER CURIAM.
Zachary Love directly appeals the below-Guidelines-range sentence the district
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court imposed after he pleaded guilty to a drug charge. His counsel has moved for
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The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.
leave to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738
(1967), questioning the district court’s Guidelines calculations and suggesting that
Love’s sentence is substantively unreasonable. Love has filed a motion for new
counsel.
To begin, we conclude that Love waived any claim of error with regard to the
drug quantity attributed to him by withdrawing his objection to the calculation at
sentencing. See United States v. Stoney End of Horn, 829 F.3d 681, 687-88 (8th Cir.
2016) (where defendant withdrew objection to PSR enhancement in district court,
claim of error on appeal was waived). Further, we find that there was no plain error
in the calculation of Love’s criminal history score. See United States v. Lovelace,
565 F.3d 1080, 1087 (8th Cir. 2009) (failure to object at sentencing results in review
for plain error that affects substantial rights); United States v. Menteer, 408 F.3d 445,
446 (8th Cir. 2005) (per curiam) (unobjected-to facts in PSR are deemed admitted).
Finally, we conclude that the district court did not impose a substantively
unreasonable sentence. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir.
2009) (en banc) (discussing appellate review of sentencing decisions); United States
v. McCauley, 715 F.3d 1119, 1127 (8th Cir. 2013) (noting that when district court has
varied below Guidelines range, it is “nearly inconceivable” that court abused its
discretion in not varying downward further). In addition, we have independently
reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), and have found no
nonfrivolous issues for appeal. Accordingly, we grant counsel’s motion to withdraw,
deny Love’s motion, and affirm the judgment.
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