United States v. Laeric West ( 2013 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-1183
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Laeric West
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
____________
Submitted: September 6, 2013
Filed: September 16, 2013
[Unpublished]
____________
Before SMITH, BOWMAN, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
Laeric West 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 sentenced him
1
The Honorable Jimm Larry Hendren, United States District Judge for the
Western District of Arkansas.
to 120 months in prison, 3 years of supervised release, and a $10,000 fine. West
appeals. His counsel has filed a brief under Anders v. California, 386 U.S. 738(1967), arguing that the court procedurally erred in calculating West’s Guidelines
sentencing range by applying an enhancement under USSG §2K2.1(b)(6)(B) (4-level
increase for possessing a firearm in connection with another felony offense).
We review the sentence first for significant procedural error and second for
substantive reasonableness. See United States v. Farmer, 647 F.3d 1175, 1178 (8th
Cir. 2011). As to counsel’s argument, reviewing the district court’s application of the
Guidelines de novo and its factual findings for clear error, see United States v.
Sanchez, 676 F.3d 627, 632 (8th Cir. 2012), we conclude that the court did not clearly
err by crediting police officer Bain Potter’s testimony, see United States v. Smith, 681
F.3d 932, 935 (8th Cir. 2012) (credibility determinations made at sentencing are
virtually unassailable on appeal), and it did not err by determining based on Potter’s
testimony that West possessed the firearm in connection with a felony drug-
trafficking offense, see United States v. Almeida-Perez, 549 F.3d 1162, 1175 (8th Cir.
2008) (when application of §2K2.1(b)(6) enhancement involves drug-trafficking
felony, court must apply enhancement unless it is clearly improbable that guns were
possessed in connection with drug offense). We also conclude that West’s sentence
is not substantively unreasonable. See United States v. Hull, 646 F.3d 583, 588 (8th
Cir. 2011) (reviewing sentence under deferential abuse-of-discretion standard, and
according presumption of reasonableness to sentence within advisory Guidelines
range); United States v. Knox, 634 F.3d 461, 464-65 (8th Cir. 2011) (finding that
district court duly addressed defendant’s ability to pay fine where it considered
defendant’s assets and liabilities and created payment plan).
After independently reviewing the record under Penson v. Ohio, 488 U.S. 75(1988), we have found no nonfrivolous issues. Accordingly, we affirm the judgment,
and we grant counsel leave to withdraw, subject to counsel informing appellant about
procedures for seeking rehearing or filing a petition for certiorari.
______________________________
-2-