United States v. Noah Dilliplane , 577 F. App'x 640 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-1662
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Noah Dilliplane,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: October 3, 2014
Filed: October 8, 2014
[Unpublished]
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Before COLLOTON, BOWMAN, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Noah Dilliplane directly appeals the sentence the district court1 imposed after
he pled guilty to a firearm charge. His counsel has filed a brief under Anders v.
1
The Honorable Jimm Larry Hendren, United States District Judge for the
Western District of Arkansas.
California, 386 U.S. 738 (1967), arguing that the district court erred in applying a
sentencing enhancement based on Dilliplane’s possessing the firearm in connection
with another felony. Counsel also seeks leave to withdraw.
Upon careful review, we conclude that the challenged enhancement was
proper. The district court found the witness who testified at the sentencing hearing
to be credible, and this determination is virtually unreviewable on appeal. See United
States v. Walker, 688 F.3d 416, 422 (8th Cir. 2012). Because the testimony reflected
that Dilliplane pointed the gun at the witness while fleeing, the district court did not
clearly err in finding that Dilliplane possessed a firearm in connection with another
felony offense. See U.S.S.G. § 2K2.1(b)(6) & comment. (n.14) (providing for
enhancement; defining “in connection with another felony offense”); United States
v. Marks, 328 F.3d 1015, 1017 (8th Cir. 2003) (standard of review); see also Ark.
Code Ann. § 5-13-204 (felony aggravated assault under Arkansas law). Further,
having independently reviewed the record pursuant to Penson v. Ohio, 488 U.S. 75
(1988), we find no nonfrivolous issues.
As for counsel’s motion to withdraw, we conclude that allowing counsel to
withdraw at this time would not be consistent with the Eighth Circuit’s 1994
Amendment to Part V of the Plan to Implement the Criminal Justice Act of 1964. We
therefore deny counsel’s motion to withdraw as premature, without prejudice to
counsel refiling the motion upon fulfilling the duties set forth in the Amendment.
Judge Colloton would grant counsel’s motion to withdraw. See United States
v. Eredia, No. 13-3538, slip op. at 2-3 (8th Cir. Oct. 2, 2014) (unpublished)
(Colloton, J., concurring in part and dissenting in part).
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