USA v. Kevin Boguth

Filing

Per Curiam OPINION filed granting motion to withdraw as counsel filed by Mr. David L. Kaczor and the district court's judgment is AFFIRMED, decision not for publication pursuant to local rule 206. Damon J. Keith; Boyce F. Martin , Jr. and Julia Smith Gibbons, Circuit Judges.

Case: 11-1958

Document: 006111240269

Filed: 03/13/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0283n.06
No. 11-1958
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEVIN GERALD BOGUTH,
Defendant-Appellant.

)
)
)
)
)
)
)
)
)

FILED

Mar 13, 2012
LEONARD GREEN, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
MICHIGAN

Before: KEITH, MARTIN, and GIBBONS, Circuit Judges.

PER CURIAM. Kevin Gerald Boguth appeals the district court’s judgment in his criminal
case. Boguth’s counsel has filed a motion to withdraw his representation in accordance with Anders
v. California, 386 U.S. 738 (1967).
Pursuant to a plea agreement, Boguth pled guilty to misapplication of bank funds in violation
of 18 U.S.C. § 656. The district court determined that, based on Boguth’s total offense level of
twenty and his criminal history category of II, his advisory sentencing guidelines range was thirtyseven to forty-six months of imprisonment. The court sentenced Boguth to forty months of
imprisonment.
Boguth’s appellate counsel has moved to withdraw, stating that he has examined the record
and found no non-frivolous grounds to raise on appeal. Counsel identified several potential issues
that may support an appeal: 1) Boguth’s guilty plea was invalid; 2) the district court improperly
assessed two criminal history points when determining Boguth’s criminal history category; 3) the
sentence was unreasonable; and 4) the district court erred by failing to grant a downward departure
under USSG § 4A1.3(b)(1), because Boguth’s criminal history category substantially overstated the

Case: 11-1958

Document: 006111240269

Filed: 03/13/2012

Page: 2

No. 11-1958
-2seriousness of his criminal history. Boguth was notified of his right to respond to counsel’s motion,
but has not done so. Further, the deadline for Boguth to file a response has now passed. Because
counsel has filed an acceptable Anders brief and our independent review of the record reveals no
arguable issues, we grant the motion to withdraw and affirm the district court’s judgment. See
Anders, 386 U.S. at 744.
Boguth entered a valid guilty plea. We review de novo the validity of a guilty plea. United
States v. Dixon, 479 F.3d 431, 434 (6th Cir. 2007). A guilty plea is valid if it is entered knowingly,
voluntarily, and intelligently. Bousley v. United States, 523 U.S. 614, 618 (1998). In accordance
with Federal Rule of Criminal Procedure 11, the district court “must verify that the defendant’s plea
is voluntary and that the defendant understands his or her applicable constitutional rights, the nature
of the crime charged, the consequences of the guilty plea, and the factual basis for concluding that
the defendant committed the crime charged.” Dixon, 479 F.3d at 434 (internal quotation marks
omitted). The record indicates that the district court complied with the requirements of Rule 11 and
properly determined that Boguth knowingly and voluntarily entered his guilty plea.
Our independent review of the record reveals no non-frivolous basis on which to challenge
Boguth’s sentence, which is both procedurally and substantively reasonable. See Gall v. United
States, 552 U.S. 38, 51 (2007). The district court properly assessed two criminal history points under
USSG § 4A1.1(b) for Boguth’s prior convictions for writing bad checks because these offenses are
considered relevant conduct for purposes of Boguth’s current offense of misapplication of bank
funds. See USSG §§ 4A1.1(b) & 4A1.2 cmt. n.1; United States v. Phillips, 516 F.3d 479, 483 (6th
Cir. 2008). The district court properly calculated the sentencing guidelines range, recognized the
advisory nature of the guidelines, gave proper consideration to the relevant 18 U.S.C. § 3553(a)
factors, and gave a thorough explanation of its chosen sentence. See Gall, 552 U.S. at 51. Finally,
we will not review a district court’s failure to grant a downward departure under § 4A1.3(b)(1)
where, as here, the court recognizes its discretion to depart, but declines to do so. See United States
v. Johnson, 553 F.3d 990, 998-99 (6th Cir. 2009).

Case: 11-1958

Document: 006111240269

Filed: 03/13/2012

Page: 3

No. 11-1958
-3Therefore, we grant counsel’s motion to withdraw and affirm the district court’s judgment.