United State v. Bradley Kielian

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1834
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Nebraska.
*
Bradley Kielian, * [UNPUBLISHED]
*
Appellant. *
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Submitted: August 7, 2000
Filed: August 10, 2000
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Before BOWMAN, FAGG, and LOKEN, Circuit Judges.
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PER CURIAM.
After Bradley Kielian appealed his drug-related sentence, counsel filed a brief
and moved to withdraw under Anders v. California, 386 U.S. 738 (1967). Counsel's
brief raises several arguments about Kielian's sentence. Having reviewed the record
and counsel's Anders brief, we reject Kielian's arguments and affirm.
First, Kielian argues the district court committed error in fixing the drug quantity
attributable to him. We review only for plain error because Kielian did not raise the
drug-quantity issue below, see Fed. R. Crim. P. 52(b); United States v. Montanye, 996
F.2d 190, 192 (8th Cir. 1993) (en banc), and we conclude the unchallenged information
in the presentence report (PSR) amply supports the district court's finding, see United
States v. Beatty, 9 F.3d 686, 689 (8th Cir. 1993) (district court is permitted to accept
as true all factual assertions not specifically objected to by parties). Second, Kielian
challenges the imposition of a 2-level firearm enhancement. Again reviewing only for
plain error, we conclude the district court properly assessed the enhancement.
Although Kielian argues his fingerprints were not found on the gun, his constructive
possession of the gun is sufficient to support the enhancement. The gun was found in
Kielian's house, locked inside a safe containing other material with his fingerprints. See
United States v. Hayes, 15 F.3d 125, 127 (8th Cir.), cert. denied, 512 U.S. 1225(1994). Finally, Kielian argues the PSR contains erroneous information about his
discharge from the military, and he complains the district court did not specify on the
judgment and commitment whether Kielian is to go through a drug-treatment program
in prison. Kielian's arguments fail because he neither objected to the allegedly
erroneous information nor sought placement in a prison drug-treatment program.
Having satisfied ourselves that there are no other nonfrivolous issues for appeal,
see Penson v. Ohio, 488 U.S. 75 (1988), we affirm the judgment of the district court,
grant counsel's motion to withdraw, and deny Kielian's request for appointment of new
counsel.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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