United States v. Kenneth Frowner ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-1637
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Southern District of Iowa.
*
Kenneth J. Frowner, also known as * [UNPUBLISHED]
Ken Dog, *
*
Appellant. *
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Submitted: August 7, 2002
Filed: August 23, 2002
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Before BOWMAN, LOKEN, and MURPHY, Circuit Judges.
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PER CURIAM.
Kenneth Frowner pleaded guilty to armed bank robbery, in violation of 18
U.S.C. §§ 2 and 2113(a) and (d). In accordance with Frowner’s plea agreement, the
district court1 sentenced him to 160 months imprisonment and 5 years supervised
release. The court also ordered him to pay $145,632.16 in restitution. On appeal,
counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S.
738 (1967), arguing that the district court erred in finding that Frowner was a career
1
The HONORABLE ROBERT W. PRATT, United States District Judge for the
Southern District of Iowa.
offender. In his pro se supplemental brief, Frowner argues that the career-offender
enhancement violated Apprendi v. New Jersey, 530 U.S. 466 (2000), and that the
district court plainly erred in not addressing each of his objections to the presentence
report (PSR).
The district court did not err in imposing the 160-month sentence to which
Frowner had agreed. See United States v. Nguyen, 46 F.3d 781, 783 (8th Cir. 1995).
Moreover, (1) Frowner did not object to the paragraphs of the PSR describing the
prior robbery and drug offenses that made the career-offender enhancement
applicable, see U.S.S.G. §§ 4B1.1, 4B1.2 comment. (n.1); United States v. Montanye,
996 F.2d 190, 192-93 (8th Cir. 1993) (en banc); (2) Apprendi does not apply because
Frowner was sentenced to less than the statutory maximum of 25 years, see 18 U.S.C.
§ 2113(d); United States v. Miller, Nos. 01-1861, 01-2525, 2002 WL 1448330, at *2
(8th Cir. Jul. 8, 2002); and (3) any failure of the district court to address each of
Frowner’s objections was harmless, see Fed. R. Crim. P. 52(a). Following our
independent review, see Penson v. Ohio, 488 U.S. 75 (1988), we find no nonfrivolous
issues.
Accordingly, we grant counsel’s motion to withdraw, and we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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