United States v. Timothy Moore ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-1226
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Timothy Moore,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: October 14, 2019
Filed: October 28, 2019
[Unpublished]
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Before COLLOTON, SHEPHERD, and ERICKSON, Circuit Judges.
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PER CURIAM.
Timothy Moore appeals after he pleaded guilty to possessing a prohibited
object in prison, and the district court1 sentenced him to a prison term at the low end
1
The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.
of the advisory sentencing guidelines range. His counsel has filed a brief under
Anders v. California, 386 U.S. 738 (1967), in which she seeks permission to
withdraw. Counsel argues that the district court erred in calculating Moore’s criminal
history score by assessing three criminal history points based on a prior conviction
for which he had been sentenced to three years in prison, but had served only 60 days.
Counsel also argues that the district court imposed a substantively unreasonable
sentence.
Upon careful review, we conclude that the district court correctly calculated
Moore’s criminal history score, as he was sentenced to 3 years in prison for the prior
conviction at issue. Criminal history points are based on the sentence pronounced,
not the length of time actually served, as long as the defendant actually served some
period of imprisonment. See U.S.S.G. §§ 4A1.1(a); 4A1.2, comment. (n.2). We
further conclude that the district court did not impose a substantively unreasonable
sentence. See generally United States v. Feemster, 572 F.3d 455, 461-62 (8th Cir.
2009) (en banc). The district court adequately considered the sentencing factors
listed in 18 U.S.C. § 3553(a) by discussing Moore’s criminal history and inability to
conform his conduct to the law. See United States v. Gray, 533 F.3d 942, 943-44 (8th
Cir. 2008). In addition, we presume that a sentence within the advisory guidelines
range is substantively reasonable. See United States v. Callaway, 762 F.3d 754, 760
(8th Cir. 2014).
Finally, having independently reviewed the record under Penson v. Ohio, 488
U.S. 75 (1988), we find no non-frivolous issues for appeal. Accordingly, we affirm,
and we grant counsel leave to withdraw.
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