United States v. James Franizer ( 2024 )

United States Court of Appeals
For the Eighth Circuit
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No. 24-1241
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
James Valentino Franizer, also known as James V. Frazier
lllllllllllllllllllllDefendant - Appellant
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No. 24-1243
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
James Valentino Franizer, also known as James V. Frazier
lllllllllllllllllllllDefendant - Appellant
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Appeals from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: October 30, 2024
Filed: November 5, 2024
[Unpublished]
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Before LOKEN, SMITH, and KOBES, Circuit Judges.
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PER CURIAM.
In these consolidated cases, James Franizer appeals after he pleaded guilty to
new drug, firearm, and ammunition offenses, and his supervised release for a prior
offense was revoked. His counsel has moved for leave to withdraw, and has filed a
brief under Anders v. California, 386 U.S. 738 (1967), challenging the district
court’s1 denial of a motion to suppress. In a pro se brief, Franizer challenges the
denial of the suppression motion, counsel’s performance, his career-offender
designation as it relates to sentencing on the new charges, and the legality of his
revocation sentence based on the classification of his original offense of conviction.
Franizer and his counsel challenge the warrantless search and seizure of his car,
despite not raising that argument in the motion to suppress and related proceedings.
Even if Franizer did not waive the argument by failing to raise it in the district court,
however, we find no plain error. See United States v. Pickens, 58 F.4th 983, 987-88
(8th Cir. 2023) (concluding that an issue not timely raised in a pretrial suppression
motion was waived, but alternatively reviewing for plain error). Franizer lacked
standing to challenge the officers’ entry onto the driveway, see United States v.
Wright, 844 F.3d 759, 762 (8th Cir. 2016); the officers had reason to approach the
car, see United States v. Rodriquez, 829 F.3d 960, 961-62 (8th Cir. 2016); and the
officers had probable cause to tow it after observing suspected drugs in plain view,
see United States v. Dunn, 928 F.3d 688, 693 (8th Cir. 2019) (credibility
determinations made by district court after hearing on motion to suppress are virtually
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa, adopting the report and recommendations of the
Honorable Stephen B. Jackson, Jr., United States Magistrate Judge for the Southern
District of Iowa.
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unassailable on appeal); United States v. Sims, 424 F.3d 691, 693 (8th Cir. 2005)
(affirming warrantless tow of car believed to contain evidence of crime). To the
extent Franizer claims in his pro se brief that trial counsel provided ineffective
assistance during the suppression proceedings, we decline to consider that claim on
direct appeal. See United States v. Kuhnel, 25 F.4th 559, 564-65 (8th Cir. 2022).
Next, we conclude that Franizer’s pro se challenges to his career-offender
designation, only some of which he raised in the district court, fail. See United States
v. Burnette, 518 F.3d 942, 945-46 (8th Cir. 2008) (this court ordinarily reviews
interpretation and application of sentencing Guidelines de novo, but unobjected-to
procedural errors are reviewed for plain error). Franizer’s 2002 conviction was
punishable by a prison term exceeding one year and was within the applicable time
period, see Wis. Stat. §§ 961.41(1m)(h)(1), 939.50(3)(i), 961.49(1)(b)(1) (2002);
U.S.S.G. § 4A1.2(e)(1), (k)(2)(A); his arguments that the conviction was too broad
have been rejected by this court, see United States v. Bailey, 37 F.4th 467, 469-70,
cert. denied, 143 S. Ct. 2437 (2023); United States v. Jefferson, 975 F.3d 700, 707
(8th Cir. 2020); and because the conviction involved intent to distribute marijuana,
rather than mere possession, the Guidelines do not provide for a reduction, see
U.S.S.G. § 4A1.3 & comment. (n.3(A)) (2023) (allowing criminal-history departure
for mere possession of marijuana for personal use). Franizer’s challenge to his 2007
predicate conviction also fails, as the conviction has not been vacated.
As to the revocation sentence, even assuming the district court erred when
classifying Franizer’s original offense of conviction for purposes of determining his
maximum sentence, we are satisfied after reviewing the record that any error was
harmless, as the district court based its sentence on factors other than the advisory
Guidelines, and the revocation sentence falls within the statutory maximums whether
the original offense is Class A or Class B. See 18 U.S.C. § 3583(e)(3); Fed. R. Crim.
P. 52(a) (any error that does not affect substantial rights is harmless and must be
disregarded); Molina-Martinez v. United States, 578 U.S. 189, 200 (2016) (error in
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miscalculating Guidelines range is harmless if record shows “that the district court
thought the sentence it chose was appropriate irrespective of the Guidelines range”).
Finally, we have independently reviewed the record under Penson v. Ohio, 488,
U.S. 75 (1988), and have found no non-frivolous issues for appeal. Accordingly, we
affirm, and we grant counsel leave to withdraw.
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