United States v. Rodney Allen Brown , 142 F. App'x 275 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3944
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Rodney Allen Brown, * Southern District of Iowa
*
Appellant. * [UNPUBLISHED]
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Submitted: July 26, 2005
Filed: August 19, 2005
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Before WOLLMAN, McMILLIAN, and RILEY, Circuit Judges.
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PER CURIAM.
Rodney Brown (Brown) appeals from the final judgment entered in the District
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Court for the Southern District of Iowa after a jury found him guilty of being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court
sentenced Brown to 57 months imprisonment and 2 years supervised release. On
appeal, counsel initially moved to withdraw and filed a brief under Anders v.
California, 386 U.S. 738 (1967), arguing (1) that the evidence was insufficient to
support the jury’s verdict, and (2) that the district court erred in imposing an
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The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
enhancement for obstruction of justice because the court did not make an independent
finding of perjury. We subsequently granted counsel leave to file a supplemental
brief in light of Blakely v. Washington, 542 U.S. 296 (2004). In the supplemental
brief, counsel argues that Brown’s sentence is plainly erroneous because he received
enhancements based on the firearm being stolen and for obstruction of justice, those
enhancements were not found by a jury, and they affected his Guidelines range.
While this appeal was pending, the Supreme Court decided in United States v.
Booker, 125 S. Ct. 738 (2005), that the Sentencing Guidelines are advisory rather
than mandatory. For the reasons discussed below, we affirm the judgment of the
district court.
First, we find the evidence amply supports the jury’s verdict. See United States
v. Ramirez, 350 F.3d 780, 783 (8th Cir. 2003) (court reviews sufficiency of evidence
in light most favorable to government, resolving evidentiary conflicts in favor of
government and accepting all reasonable inferences that support jury’s verdict).
Police officers responding to a report of shots being fired spotted Brown hiding
underneath a deck at a nearby house. Two officers testified that they saw a gun in
Brown’s hand, and a third testified that although he could not see Brown’s hands,
Brown had moved his hand over his head before showing his hands. The jury was
free to credit the officers’ testimony over Brown’s testimony. See United States v.
Aguilar-Portillo, 334 F.3d 744, 747 (8th Cir. 2003). Brown did not dispute that he
had a prior felony conviction or that the gun had been transported in interstate
commerce. See United States v. Jones, 266 F.3d 804, 813 (8th Cir. 2001) (elements
of felon-in-possession offense).
As to the sentence, this court continues to review de novo the interpretation and
application of the Guidelines provisions after Booker. See United States v. Ziesman,
409 F.3d 941, 955 (8th Cir. 2005). We find the court sufficiently indicated that it had
made an independent finding that Brown testified falsely, because the court referred
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to “the findings that I make” in connection with the court’s conclusion that Brown’s
testimony was false. See id. at 956.
We review for plain error Brown’s claims based on Booker, as Brown did not
make any arguments in the district court to preserve these issues. See United States
v. Pirani, 406 F.3d 543, 549-50 (8th Cir. 2005) (en banc). We find no error in the
enhancement based on the fact that the firearm was stolen, as Brown admitted that
fact at sentencing. See United States v. Halter, No. 04-2150, 2005 WL 1421686, at
**1-2 (8th Cir. June 20, 2005) (per curiam) (defendant admitted gun was stolen by
failing to object to that statement in PSR, so enhancement he received on that basis
did not violate Sixth Amendment); U.S.S.G. § 2K2.1, comment. (n.19) (2003) (stolen-
gun enhancement “applies whether or not the defendant knew or had reason to believe
that the firearm was stolen”). While it was error for the district court to sentence
Brown under mandatory Guidelines, and the error was plain, it did not affect Brown’s
substantial rights, as he has not shown a reasonable probability that, but for the error,
he would have received a more favorable sentence. See Pirani, 406 F.3d at 553.
Further, we find no basis to exercise our discretion to remand for resentencing. See
Johnson v. United States, 520 U.S. 461, 467 (1997).
Following our independent review, see Penson v. Ohio, 488 U.S. 75 (1988), we
find no nonfrivolous issues. Accordingly, we affirm the sentence, and we grant
counsel’s motion to withdraw.
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