United States v. Jerry Love ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-1513
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jerry Dean Love
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: November 27, 2019
Filed: December 4, 2019
[Unpublished]
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Before COLLOTON, BENTON, and GRASZ, Circuit Judges.
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PER CURIAM.
Jerry Love appeals after he pled guilty to a drug offense and a firearm offense,
and the district court1 sentenced him to a prison term within the advisory range under
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The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
the United States Sentencing Guidelines Manual. His counsel has moved to
withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967),
arguing the district court erred in designating Love a career offender, denying his
request for a downward departure, and imposing a substantively unreasonable
sentence.
We conclude the district court did not plainly err in designating Love a career
offender based on his prior federal conviction for a controlled substance offense and
his prior Iowa conviction for terrorism. See United States v. Benton, 918 F.3d 994,
996 (8th Cir. 2019) (per curiam) (standard of review); see also U.S.S.G. §§ 4B1.1(a)
(providing a defendant is a career offender if at least eighteen years old with at least
two prior felony convictions for either a crime of violence or a controlled substance
offense, and the instant offense is a felony controlled substance offense), 4B1.2(a)
(providing an offense is a crime of violence if, inter alia, it “has as an element the use,
attempted use, or threatened use of physical force against the person of another”); cf.
United States v. Langston, 772 F.3d 560, 562-63 (8th Cir. 2014) (per curiam) (Iowa
terrorism conviction qualified as a violent felony under the Armed Career Criminal
Act because “any violation necessarily requires violent force.”), vacated on other
grounds, 135 S. Ct. 2936 (2015).
Further, we note the denial of Love’s request for a downward departure is not
reviewable, given that the district court understood its authority to depart, but
declined to do so on the facts presented. See United States v. Rhone, 311 F.3d 893,
894 (8th Cir. 2002) (noting if district court understands its authority to depart, but
declines to do so on the facts presented, its decision not to depart is unreviewable
absent unconstitutional motive).
We also conclude the district court did not impose a substantively unreasonable
sentence. See United States v. Feemster, 572 F.3d 455, 461-62 (8th Cir. 2009) (en
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banc) (reviewing sentence under deferential abuse-of-discretion standard and
discussing substantive reasonableness).
In addition, having independently reviewed the record under Penson v. Ohio,
488 U.S. 75 (1988), we find no nonfrivolous issues for appeal. Accordingly, we grant
counsel’s motion to withdraw, and we affirm.
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