United States v. Calshaun Hicks ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1641
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Calshaun Hicks, also known as Joker, *
* [UNPUBLISHED]
Appellant. *
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Submitted: March 29, 2010
Filed: April 1, 2010
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Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
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PER CURIAM.
Calshaun Hicks challenges the sentence imposed on him by the district court1
after he pleaded guilty to a cocaine-base conspiracy offense. On appeal, Hicks’s
counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967), and has
moved to withdraw, arguing that the district court improperly sentenced Hicks as a
career offender, because the two convictions underlying career offender status were
not “crimes of violence.” See U.S.S.G. § 4B1.1 (career offender Guideline).
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
We review de novo the district court’s determination that a prior conviction
constitutes a “crime of violence” for purposes of career offender status. See United
States v. Davis, 583 F.3d 1081, 1092-93 (8th Cir. 2009). We conclude that Hicks’s
Nebraska conviction for attempted robbery qualifies as a crime of violence. See
U.S.S.G. § 4B1.2(a)(1) (defining “crimes of violence” as crimes that have “as an
element, the use, attempted use, or threatened use of physical force against the person
of another”); Neb. Rev. Stat. § 28-324(1) (1989) (“person commits robbery if, with
the intent to steal, he forcibly and by violence, or by putting in fear, takes from the
person of another any money or personal property of any value whatever”); United
States v. Sawyer, 588 F.3d 548, 555-56 (8th Cir. 2009) (attempted robbery was crime
of violence); see also U.S.S.G. § 4B1.2, comment. (n.1). Hicks’s federal conviction
for aiding and abetting a carjacking is also a crime of violence. See 18 U.S.C. § 2119(person commits carjacking if he takes motor vehicle “from the person or presence of
another by force and violence or by intimidation”); United States v. Brown, 550 F.3d
724, 728 (8th Cir. 2008) (under Guidelines, “crime of violence” includes offense of
aiding and abetting).
We reject counsel’s additional argument that Hicks’s sentence, which falls at
the bottom of the Guidelines range, is unreasonable. See Rita v. United States, 551
U.S. 338, 347-50 (2007) (approving appellate presumption of reasonableness for
sentences within properly calculated Guidelines range); United States v. Feemster,
572 F.3d 455, 461 (8th Cir. 2009) (en banc) (standard of review). Finally, having
reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), for any nonfrivolous
issues, we find none.
Accordingly, we affirm, and we grant counsel’s motion to withdraw.
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