United States v. Kenji Walker , 499 F. App'x 638 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-2128
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kenji P. Walker
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: March 1, 2013
Filed: March 8, 2013
[Unpublished]
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Before BYE, ARNOLD, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Kenji Walker pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court1 calculated a
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
Sentencing Guidelines imprisonment range of 78-97 months. To calculate the base
offense level, the court applied USSG §2A1.3 (Guideline for voluntary manslaughter)
through the USSG §2K2.1 cross reference after it determined that Walker’s fatal
shooting of Keith Williams was most analogous to voluntary manslaughter. See
USSG §2K2.1(c)(1)(B) (if defendant used or possessed “any firearm” in connection
with commission of another offense and death resulted, apply, if greater, offense level
for most analogous homicide offense under USSG §2A1). The district court varied
upward to impose a sentence of 108 months in prison. On appeal, Walker’s counsel
has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738(1967), arguing that the court erred in applying the cross reference because Walker
shot Williams in self-defense.
We conclude that the application of the cross reference was appropriate, in view
of the evidence undermining Walker’s self-defense claim. See United States v.
Tyerman, 701 F.3d 552, 566 (8th Cir. 2012) (standard of review). We further
conclude that the district court properly considered the sentencing factors and that the
sentence is not unreasonable. See United States v. Farmer, 647 F.3d 1175, 1178 (8th
Cir. 2011) (standard of review); United States v. Mangum, 625 F.3d 466, 470 (8th Cir.
2010) (upward-variance sentence is reasonable where court makes individualized
assessment of 18 U.S.C. § 3553(a) factors based on facts presented, and considers
defendant’s proffered information).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues. We therefore affirm the judgment of the
district court and grant counsel’s motion to withdraw, subject to counsel informing
appellant about procedures for seeking rehearing or filing a petition for certiorari.
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