United States v. John Robert Kennedy ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2247
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
John Robert Kennedy, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 6, 2002
Filed: December 11, 2002
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Before BOWMAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
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PER CURIAM.
John Robert Kennedy appeals the sentence imposed by the district court1 upon
his guilty plea to possessing a firearm that was not registered to him, in violation of
26 U.S.C. §§ 5845, 5861(d), and 5871; and being a felon in possession of explosives
previously shipped in interstate commerce, in violation of 18 U.S.C. §§ 842(i)(1) and
844(a). The district court sentenced Kennedy to concurrent 71-month prison terms
on the firearm and explosives convictions, and to concurrent 3-year terms of
supervised release. On appeal, counsel has moved to withdraw and filed a brief under
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
Anders v. California, 386 U.S. 738 (1967), arguing the district court erred in
imposing a 4-level increase for possession of firearms and explosives with intent that
they would be used in connection with another felony offense, and in denying a
downward-departure motion that was based on Kennedy’s severe wrist injury. We
affirm.
First, at sentencing the government presented a witness who testified that
Kennedy asked him to obtain weapons and explosives for use in the robbery of a
jewelry store, and that he and Kennedy made and tested grenades. A federal agent
testified that he arranged a weapons transfer between Kennedy and the government
witness. See United States v. Russell, 234 F.3d 404, 408 (8th Cir. 2000) (at
sentencing, government has burden of proof on disputed facts, and generally must
satisfy preponderance-of-evidence standard). The district court’s finding that the
testimony was credible is virtually unreviewable on appeal. See United States v.
Womack, 191 F.3d 879, 885 (8th Cir. 1999).
Second, at sentencing the district court stated it was aware of its authority to
depart but was declining to do so, and therefore its decision is unreviewable. See
United States v. Orosco-Rodriguez, 220 F.3d 940, 942 (8th Cir. 2000).
Having reviewed the record independently pursuant to Penson v. Ohio, 488
U.S. 75 (1988), we find no nonfrivolous issues.
Accordingly, we affirm, and we grant counsel’s motion to withdraw.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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