United States v. David Lemley ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-2092
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United States of America
Plaintiff - Appellee
v.
David Wayne Lemley
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: November 15, 2021
Filed: December 7, 2021
[Unpublished]
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Before COLLOTON, BENTON, and GRASZ, Circuit Judges.
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PER CURIAM.
David Wayne Lemley appeals the below Guidelines sentence the district
court 1 imposed after he pled guilty to a conspiracy drug offense. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
Counsel has moved for leave to withdraw, and has filed a brief under Anders
v. California, 386 U.S. 738 (1967), challenging the assessment of a 2-level
enhancement for maintaining a premises, and asserting that the sentence was
substantively unreasonable. In a pro se brief, Lemley also challenges the premises
enhancement, and contends that counsel has not been helpful throughout the case.
The district court did not err in applying the premises enhancement because
its factual findings were not clearly erroneous, as Lemley conducted substantial drug
trafficking activities from his storage units, and drugs and drug distribution materials
were stored there. See United States v. Miller, 698 F.3d 699, 705, 707 (8th Cir.
2012) (standard of review); United States v. McArthur, 11 F.4th 655, 661 (8th Cir.
2021) (enhancement applies to defendant who uses a premises for the purpose of
substantial drug-trafficking activities, even if the premises also served other,
legitimate functions). The sentence was not substantively unreasonable because the
record shows that the court considered the appropriate statutory factors in
determining Lemley’s sentence. See United States v. Feemster, 572 F.3d 455, 461-
62, 464 (8th Cir. 2009) (en banc) (in reviewing sentences, appellate court first
ensures no significant procedural error occurred, then considers substantive
reasonableness of sentence under abuse-of-discretion standard); United States v.
Stults, 575 F.3d 834, 849 (8th Cir. 2009) (where court makes individualized
assessment based on facts presented, addressing defendant’s proffered information
in consideration of 18 U.S.C. § 3553(a) factors, sentence is not unreasonable).
To the extent Lemley is attempting to raise an ineffective assistance claim that
requires development of matters outside the record, this court declines to address the
claim on direct appeal. See United States v. Ramirez-Hernandez, 449 F.3d 824, 826-
27 (8th Cir. 2006). This court has independently reviewed the record under Penson
v. Ohio, 488 U.S. 75 (1988), and finds no nonfrivolous issues for appeal.
The judgment is affirmed. Counsel’s motion to withdraw is granted.
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