United States v. Vincent Ballard ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-2076
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United States of America
Plaintiff Appellee
v.
Vincent Mitchell Ballard
Defendant Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: April 28, 2020
Filed: May 6, 2020
[Unpublished]
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Before BENTON, KELLY, and GRASZ, Circuit Judges.
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PER CURIAM.
Vincent Mitchell Ballard appeals the sentence the district court1 imposed after
he pled guilty to a drug offense. Having jurisdiction under 28 U.S.C. § 2891, this
court affirms.
1
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
In calculating the appropriate sentencing range under the Guidelines, the
district court classified Ballard as a career offender based in part on a 2013 Iowa
conviction for assault on a peace officer, Iowa Code § 708.3A(3). Ballard’s counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), challenging the
sentence as an abuse of discretion and substantively unreasonable. This court ordered
supplemental briefing addressing whether the Iowa assault conviction qualified as a
career offender predicate.
Because Ballard did not challenge the career offender designation in the district
court, review is for plain error. See United States v. Winston, 850 F.3d 377, 380 (8th
Cir. 2017) (to demonstrate plain error defendant must show (1) error, (2) that is clear
or obvious under current law, (3) which affected his substantial rights, and (4)
seriously affects fairness, integrity, or public reputation of judicial proceedings). This
court concludes that any error in qualifying Ballard’s section 708.3A(3) conviction
as a career offender predicate was neither clear or obvious under current law, and did
not affect his substantial rights. See United States v. Quigley, 943 F.3d 390, 393-94
(8th Cir. 2019); Golinveaux v. United States, 915 F.3d 564, 572 (8th Cir. 2019)
(Colloton, J., concurring in the judgment); United States v. Gaines, 895 F.3d 1028,
1032-33 (8th Cir. 2018).
The district court did not abuse its discretion in imposing the within-Guidelines
sentence. See United States v. Feemster, 572 F.3d 455, 461-62 (8th Cir. 2009) (en
banc) (abuse of discretion occurs when court fails to consider relevant factor, gives
significant weight to improper or irrelevant factor, or commits clear error of judgment
in weighing appropriate factor). The court has independently reviewed the record
under Penson v. Ohio, 488 U.S. 75 (1988), and found no other nonfrivolous issues for
appeal.
The judgment is affirmed.
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