United States v. Keith Dunlap

United States Court of Appeals
For the Eighth Circuit
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No. 23-1584
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Keith Lamar Dunlap
lllllllllllllllllllllDefendant - Appellant
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No. 23-1585
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Keith Lamar Dunlap
lllllllllllllllllllllDefendant - Appellant
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Appeals from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: July 24, 2023
Filed: August 1, 2023
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Before COLLOTON, SHEPHERD, and KOBES, Circuit Judges.
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PER CURIAM.
In these consolidated cases, Keith Dunlap appeals the sentences the district
court1 imposed after he pleaded guilty to a new federal bank robbery offense and his
supervised release was revoked. His counsel has moved to withdraw and filed a brief
under Anders v. California, 386 U.S. 738 (1967), challenging both sentences as
substantively unreasonable. Dunlap raises additional arguments in a pro se brief.
After reviewing the record under a deferential abuse-of-discretion standard, see
Gall v. United States, 552 U.S. 38, 41, 51 (2007); United States v. Miller, 557 F.3d
910, 915-16, 917 (8th Cir. 2009), we conclude the district court did not impose
substantively unreasonable sentences. The sentences were within the statutory
maximums. See 18 U.S.C. §§ 2113(a), 3583(b)(2), 3583(e)(3). The sentence
imposed for the new bank robbery was also presumptively reasonable because it fell
within the United States Sentencing Guidelines advisory range, see Gall, 552 U.S. at
51, and because the revocation sentence was below the advisory Guidelines range, “it
is nearly inconceivable that the court abused its discretion in not varying downward
still further,” United States v. Michael, 12 F.4th 858, 860 (8th Cir. 2021) (citation
omitted), cert. denied, 142 S. Ct. 1185 (2022). The court considered the statutory
sentencing factors and did not overlook a relevant factor, give significant weight to
an improper or irrelevant factor, or commit a clear error of judgment in weighing
relevant factors, including those discussed in the Anders and pro se briefs. See 18
U.S.C. §§ 3553(a), 3583(e); United States v. Feemster, 572 F.3d 455, 461, 464 (8th
Cir. 2009) (en banc). Although the court gave those factors less weight than Dunlap
preferred, it acted within its wide discretion. See United States v. Vaca, 38 F.4th 718,
1
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
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724 (8th Cir. 2022); United States v. Dunn, 928 F.3d 688, 694 (8th Cir. 2019).
Moreover, the court’s decision to impose the federal sentences consecutively was
both statutorily authorized and reasonable, especially in light of Dunlap’s criminal
history. See 18 U.S.C. § 3584(a); United States v. Nelson, 982 F.3d 1141, 1146 (8th
Cir. 2020); see also U.S.S.G. § 5G1.3(d) & comment. n.4(C).
In the pro se brief, Dunlap also suggests his new bank robbery sentence was
unreasonable because he was not a career offender. See U.S.S.G. § 4B1.1(a). Even
if the court had erred, Dunlap invited the error by conceding he was a career offender.
See United States v. Corn, 47 F.4th 892, 895 (8th Cir. 2022). And even if Dunlap had
not invited the error, we discern no plain error. See United States v. Benton, 918 F.3d
994, 996 (8th Cir. 2019) (per curiam); United States v. Harper, 869 F.3d 624, 625-27
(8th Cir. 2017); see also United States v. Shields, 63 F.4th 1145, 1147 (8th Cir.
2023). We decline to address Dunlap’s ineffective-assistance-of-counsel claims on
direct appeal because they are best addressed in collateral proceedings. See United
States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir. 2006).
Finally, we have independently reviewed the record under Penson v. Ohio, 488
U.S. 75 (1988), and have found no non-frivolous issues for appeal.
Accordingly, we affirm the judgment of the district court and grant counsel’s
motion to withdraw in both cases.
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