United States v. Elmer Francis

United States Court of Appeals
For the Eighth Circuit
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No. 22-2555
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United States of America,
Plaintiff Appellee,
v.
Elmer Francis, also known as Nathan,
Defendant Appellant.
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: March 27, 2023
Filed: April 6, 2023
[Unpublished]
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Before COLLOTON, KELLY, and GRASZ, Circuit Judges.
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PER CURIAM.
Elmer Francis appeals a sentence imposed by the district court1 after he pleaded
guilty to a drug offense. His counsel has moved to withdraw and filed a brief under
1
The Honorable Timothy L. Books, United States District Judge for the
Western District of Arkansas.
Anders v. California, 386 U.S. 738 (1967), challenging a four-level increase for role
in the offense under the sentencing guidelines, and questioning the reasonableness
of the sentence.
We conclude that the district court did not clearly err in applying the increase
for role in the offense under USSG § 3B1.1. The undisputed facts in the presentence
report established that the drug trafficking organization involved five or more
participants. Francis admitted in the plea agreement that he was the head of the
organization and recruited two co-conspirators to travel with him to California to
obtain multiple pounds of methamphetamine. See USSG § 3B1.1(a); United States
v. Razo Guerra, 534 F.3d 970, 976-77 (8th Cir. 2008); United States v. Menteer, 408
F.3d 445, 446 (8th Cir. 2005) (per curiam). We also conclude that Francis’s sentence
was not unreasonable, as there is no indication that the district court overlooked a
relevant factor, gave significant weight to an improper or irrelevant factor, or
committed a clear error of judgment in weighing the relevant factors. See United
States v. Feemster, 572 F.3d 455, 461-62 (8th Cir. 2009) (en banc).
Francis has filed a pro se brief in which he argues that the presentence report
relied on a confidential source who provided inaccurate information to law
enforcement. But Francis withdrew his objections to most of the information in the
report, see Menteer, 408 F.3d at 446 (per curiam), and the district court specifically
stated that it would not take any disputed allegations into consideration for purposes
of sentencing. See Fed. R. Crim. P. 32(i)(3)(B).
We have independently reviewed the record under Penson v. Ohio, 488 U.S.
75 (1988), and we find no non-frivolous issues for appeal. Accordingly, we affirm,
and we grant counsel’s motion to withdraw.
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