United States v. Harlan Dale Berndt

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3185
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Harlan Dale Berndt, *
* [UNPUBLISHED]
Appellant. *
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Submitted: March 29, 2011
Filed: April 4, 2011
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Before MELLOY, GRUENDER, and BENTON, Circuit Judges.
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PER CURIAM.
Harlan Dale Berndt pleaded guilty to making false statements in connection
with a crop insurance program, in violation of 18 U.S.C. § 1014. Choosing to vary
below the advisory Guidelines imprisonment range of 8-14 months, the district court1
sentenced Berndt to 5 years of probation and ordered him to pay $48,445 in
restitution. Berndt appeals. His counsel has moved to withdraw and filed a brief
under Anders v. California, 386 U.S. 738 (1967), suggesting that the sentence was
1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
unreasonable. Berndt has filed a pro se supplemental brief, essentially objecting to
the amount of restitution and to counsel’s representation.
We conclude that the district court took into account all the relevant sentencing
factors, committed no procedural error, and imposed a substantively reasonable
sentence. See Gall v. United States, 552 U.S. 38, 51 (2007) (in reviewing sentence,
appellate court first ensures that district court committed no significant procedural
error, and then considers substantive reasonableness of sentence under
abuse-of-discretion standard); United States v. Haack, 403 F.3d 997, 1004 (8th Cir.
2005) (describing abuse of discretion). We find no clear error in the district court’s
determination of restitution, United States v. United Sec. Sav. Bank, 394 F.3d 564,
567 (8th Cir. 2004) (per curiam) (standard of review); Anderson v. City of Bessemer
City, N.C., 470 U.S. 564, 573 (1985) (describing clear-error standard); and we decline
to consider any ineffective-assistance claim on direct appeal, see United States v.
Cain, 134 F.3d 1345, 1352 (8th Cir. 1998) (ineffective-assistance claim should be
raised in 28 U.S.C. § 2255 motion).
Having reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), we find
no nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw, and we
affirm.
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