United States v. Timothy Lange

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3446
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Timothy J. Lange, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 29, 2010
Filed: May 4, 2010
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Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal, Timothy J. Lange challenges the 51-month prison
sentence the district court1 imposed after he pleaded guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). His
counsel has moved to withdraw and has filed a brief under Anders v. California, 386
U.S. 738 (1967), arguing that the court erred in departing upward by three criminal
history categories under U.S.S.G. § 4A1.3(a) (understatement of criminal history), and
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
that the sentence is substantively unreasonable. In his pro se supplemental brief,
Lange argues that the court erred in departing upward under section 4A1.3. For the
following reasons, we affirm.
The district court did not abuse its discretion in departing upward. The court
adequately explained its decision and considered appropriate factors in concluding
that Lange was a recidivist whose criminal history category did not accurately reflect
his recidivism and who had received relatively lenient sentences throughout his
extensive criminal history. See United States v. Gonzalez, 573 F.3d 600, 605-07 (8th
Cir. 2009) (no abuse of discretion in departing upward under § 4A1.3(a) where court
considered appropriate factors and adequately explained decision). We also conclude
that the court did not abuse its discretion by imposing an unreasonable sentence: the
court noted that it had considered the 18 U.S.C. § 3553(a) factors, specifically
discussed several of the factors, and entertained defense arguments for a lower
sentence. We find no indication in the record that the court overlooked a relevant
factor, gave significant weight to an improper or irrelevant factor, or misapplied the
factors. See United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005).
Finally, having reviewed the record independently under Penson v. Ohio, 488
U.S. 75 (1988), we have found no nonfrivolous issues. Accordingly, we grant
counsel’s motion to withdraw, and we affirm the district court’s judgment.
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