United States v. Jeffery Gbor , 676 F. App'x 623 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-3194
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jeffery Dulwonh Gbor
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of Minnesota - St. Paul
____________
Submitted: February 15, 2017
Filed: February 22, 2017
[Unpublished]
____________
Before SMITH, BOWMAN, and BENTON, Circuit Judges.
____________
PER CURIAM.
Jeffrey Dulwonh Gbor pled guilty to charges of bank-fraud conspiracy and
aggravated identity theft. The district court1 sentenced him to 136 months in prison
1
The Honorable John R. Tunheim, Chief Judge, United States District Court for
the District of Minnesota.
and ordered $736,519.23 in restitution. On appeal, Gbor’s counsel moves to
withdraw, and submits a brief under Anders v. California, 386 U.S. 738 (1967). Gbor
has filed a pro se supplemental brief. Having jurisdiction under 28 U.S.C. § 1291,
this court affirms.
In the Anders brief, counsel raises ineffective-assistance claims concerning the
failure to investigate and challenge the amount of actual and intended loss, but this
court will not consider those claims in this direct criminal appeal. See United States
v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir. 2006) (ineffective-assistance
claims are usually best litigated in collateral proceedings, where record can be
properly developed). In the supplemental brief, Gbor challenges the district court’s
calculation of the amount of actual loss and the amount of restitution ordered. At
sentencing, Gbor did not object to the presentence report’s calculation of actual losses
suffered by eighteen financial institutions, and the district court was entitled to accept
that calculation. See United States v. Menteer, 408 F.3d 445, 446 (8th Cir. 2005) (per
curiam) (unobjected-to facts in presentence report are deemed admitted). Gbor also
did not object to the amount of restitution ordered, which was based on the actual-loss
calculations. This court cannot say that the restitution order is plainly erroneous. See
18 U.S.C. § 3663A (Mandatory Victims Restitution Act); United States v. Ramirez,
196 F.3d 895, 899 (8th Cir. 1999) (plain-error review). Having independently
reviewed the record pursuant to Penson v. Ohio, 488 U.S. 75 (1988), this court finds
no non-frivolous issues for appeal.2
The judgment is affirmed, and counsel’s motion to withdraw is granted.
______________________________
2
Given the disposition of this appeal, this court need not—and does
not—consider the validity of the appeal waiver that was a part of the written plea
agreement in this case.
-2-