United States v. Ivan Avila ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-1921
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Ivan Avila
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Sioux City
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Submitted: December 11, 2017
Filed: December 21, 2017
[Unpublished]
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Before GRUENDER, MURPHY, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Ivan Avila directly appeals after he pleaded guilty to drug offenses, and the
district court1 sentenced him below the calculated guidelines range. His counsel has
1
The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa.
moved for leave to withdraw and has filed a brief under Anders v. California, 386 U.S.
738 (1967), arguing that the district court erred in applying a guidelines enhancement
for possessing a firearm in connection with the drug offenses, under U.S.S.G.
§ 2D1.1(b)(1).
After careful consideration, we conclude that the district court committed no
procedural error, that the government met its burden of proof, and that the district
court did not clearly err in applying the challenged enhancement. See U.S.S.G.
§ 2D1.1(b)(1), cmt. n. 11 (stating that the enhancement should be applied if the
weapon was present, unless it is clearly improbable that the weapon was connected
with the offense); cf. United States v. Savage, 414 F.3d 964, 967 (8th Cir. 2005)
(holding that the district court did not clearly err in applying § 2D1.1(b)(1)
enhancement where the firearm was readily accessible to the defendant and would be
available to him in case of a dispute during a drug transaction).
Having independently reviewed the record pursuant to Penson v. Ohio, 488
U.S. 75 (1988), we find no nonfrivolous issues for appeal. We thus grant counsel’s
motion to withdraw and affirm.
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