United States v. Allen Kroells

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-4032
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Allen Kroells, * [UNPUBLISHED]
*
Appellant. *
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Submitted: May 20, 1999
Filed: June 1, 1999
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Before WOLLMAN, Chief Judge, LOKEN, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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PER CURIAM.
Allen Kroells pleaded guilty to aiding and abetting the dealing of counterfeit
obligations in violation of 18 U.S.C. §§ 473 and 2. On appeal, counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), suggesting that the district
court1 incorrectly applied U.S. Sentencing Guidelines Manual § 2B5.1 (1998) in
calculating Kroells’s base offense level; erred in denying his downward-departure
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
motion based on an overstatement of criminal history; and--despite Kroells’s failure to
move to withdraw his guilty plea--should have sua sponte rejected Kroells’s guilty plea
after the court determined that it would not be able to impose a “split” sentence as
contemplated in the plea agreement. We granted Kroells permission to file a pro se
supplemental brief, but he has not done so.
As Kroells did not challenge his base offense level at sentencing, we review the
district court’s calculation for plain error, and we find none. See United States v.
Montayne, 996 F.2d 190, 192 (8th Cir. 1993) (en banc) (explaining plain-error
review); United States v. Lamere, 980 F.2d 506, 513 (8th Cir. 1992) (§ 2B5.1
establishes offense level for counterfeiting offenses). Because the district court’s
comments at sentencing indicate that the court was aware of its authority to grant a
downward departure based on an overstatement of criminal history and simply
exercised its discretion not to depart, we conclude that the denial of such a departure
is unreviewable. See United States v. Knight, 96 F.3d 307, 311 (8th Cir. 1996), cert.
denied, 520 U.S. 1180 (1997). Finally, we note that Kroells’s plea agreement
acknowledged that the district court was not bound by the Guidelines calculations
contained in the agreement. See United States v. Harris, 70 F.3d 1001, 1004 (8th Cir.
1995).
In accordance with Penson v. Ohio, 488 U.S. 75, 80 (1988), we have reviewed
the record for any nonfrivolous issues and have found none.
Accordingly, the judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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