United States v. Kelly Flannery

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3454
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Kelly Flannery, *
* [UNPUBLISHED]
Appellant. *
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Submitted: July 2, 2004
Filed: July 27, 2004
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Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Kelly Flannery appeals the sentence the district court1 imposed after he pleaded
guilty to aiding and abetting others in willfully making a threat and maliciously
conveying false information, over the telephone, about alleged attempts to blow up
a courthouse, in violation of 18 U.S.C. §§ 844(e) and 2. At sentencing, the district
court determined that Flannery was a career offender, see U.S.S.G. § 4B1.1, and
sentenced him to 120 months imprisonment and 3 years supervised release. We
affirm.
1
The Honorable G. Thomas Eisele, United States District Judge for the Eastern
District of Arkansas.
Flannery argues for the first time that he was improperly classified as a career
offender because the instant offense did not qualify as a “crime of violence.” We find
that the court did not plainly err in classifying the instant offense--aiding and abetting
others in threatening to blow up the courthouse--as a crime of violence. See U.S.S.G.
§ 4B1.2(a) (defining crime of violence); United States v. Santos, 131 F.3d 16, 21 (1st
Cir. 1997); cf. United States v. Left Hand Bull, 901 F.2d 647, 649 (8th Cir. 1990)
(where defendant mailed threatening letter, he committed crime of violence under
career-offender provisions, even if he lacked ability to act contemporaneously upon
his threat). Flannery also argues he should have received an acceptance-of-
responsibility reduction. We reject this contention, because in light of the evidence
presented at sentencing, the court did not clearly err in finding that Flannery
minimized his role in the offense to the probation officer who interviewed him. See
United States v. Alaniz, 148 F.3d 929, 937 (8th Cir. 1998) (denying acceptance-of-
responsibility reduction because entry of guilty plea alone did not entitle defendant
to reduction, and he continued to deny his involvement in offense after there was
substantial evidence of his participation).
We do not reach Flannery’s remaining arguments regarding his criminal history
points and an aggravating-role enhancement, because these issues are moot in light
of Flannery’s career-offender status. See U.S.S.G. § 4B1.1(b). Accordingly, we
affirm.
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