United States v. Ramon T. Morales , 201 F. App'x 379 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3699
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Ramon T. Morales, also known as *
Munchies, * [UNPUBLISHED]
*
Appellant. *
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Submitted: October 6, 2006
Filed: October 23, 2006
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Before SMITH, MAGILL, and BENTON, Circuit Judges.
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PER CURIAM.
Ramon Morales pleaded guilty to being a felon in possession of firearms and
to possessing a firearm with an obliterated serial number in violation of 18 U.S.C.
§§ 922(g)(1), (k), and 2. After this court vacated his original sentence and remanded
for resentencing under United States v. Booker, 543 U.S. 220 (2005), the district
court1 resentenced him to concurrent prison terms of 64 months on the first count and
60 months on the second count, to be followed by concurrent terms of two years of
1
The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
supervised release. On appeal, counsel has moved to withdraw and has filed a brief
under Anders v. California, 386 U.S. 738 (1967), arguing that the district court erred
in applying U.S.S.G. § 2K2.1(b)(5) (4-level enhancement for using or possessing any
firearm or ammunition in connection with another felony offense). Specifically,
counsel argues that the enhancement is erroneous because it is based on a prior
conviction that was unrelated to the instant offense and the firearms involved. We
reject counsel’s argument and affirm.
We review de novo the district court’s legal conclusions concerning the
application of section 2K2.1(b)(5), and we review the underlying factual findings for
clear error. See United States v. Anderson, 339 F.3d 720, 724 (8th Cir. 2003)
(standard of review). It is undisputed that Morales has a prior conviction for
aggravated discharge of a firearm, and thus the district court properly concluded that
he used “any firearm . . . in connection with another felony offense”; we have
expressly held that section 2K2.1(b)(5) applies for other felony offenses that occurred
distinct from the offense of conviction and that “the firearm used in another felony
need not be the same firearm involved in the offense of conviction.” See United
States v. Davis, 360 F.3d 901, 902-04 (8th Cir. 2004).
After our review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80
(1988), we find no nonfrivolous issues. Accordingly, we grant counsel’s motion to
withdraw, and we affirm.
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