United States v. Jeffrey Provancial

Filing

PER CURIAM OPINION FILED - THE COURT: DIANA E. MURPHY, MORRIS S. ARNOLD and DUANE BENTON (UNPUBLISHED); [3797706-2] Attorney Randall B. Turner's motion to withdraw as counsel for appellant is granted. [3851767] [11-1639]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 11-1639
___________
United States of America,
Appellee,
v.
Jeffrey W. Provancial,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* District of South Dakota.
*
*
[UNPUBLISHED]
*
___________
Submitted: November 17, 2011
Filed: November 22, 2011
___________

Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
___________
PER CURIAM.
Under the terms of a written plea agreement, Jeffrey W. Provancial pleaded
guilty to sexual abuse, in violation of 18 U.S.C. §§ 1153, 2242(2), and 2246(2)(A).
The district court1 imposed a sentence of 108 months in prison, at the top of the
advisory Guidelines range, and 5 years of supervised release. Mr. Provancial filed
a timely pro se notice of appeal, claiming ineffective assistance of counsel. His
counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S.
738 (1967), arguing that the district court improperly relied on the government’s
1

The Honorable Roberto Antonio Lange, United States District Judge for the
District of South Dakota.

Appellate Case: 11-1639

Page: 1

Date Filed: 11/22/2011 Entry ID: 3851767

failure to prove a use-of-force enhancement under the Guidelines in determining its
sentence; and that the court clearly erred in finding at sentencing that Mr. Provancial
had “no employment history whatsoever,” when he in fact had worked for one
summer prior to his arrest at age 18.
We reject counsel’s arguments. First, we see no indication that the district
court gave significant weight to any improper factor at sentencing. See United States
v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). Second, we conclude that
the mischaracterization of Mr. Provancial’s employment history, to which counsel did
not object below, was not plain error. See United States v. Molnar, 590 F.3d 912,
914-15 (8th Cir. 2010). We decline to consider Mr. Provancial’s ineffectiveassistance claim on direct appeal. See United States v. Ramirez-Hernandez, 449 F.3d
824, 826-27 (8th Cir. 2006).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issue. Accordingly, we affirm the judgment of
the district court and we grant counsel’s motion to withdraw, subject to counsel
informing Mr. Provancial about procedures for seeking rehearing or filing a petition
for certiorari.
______________________________

-2-

Appellate Case: 11-1639

Page: 2

Date Filed: 11/22/2011 Entry ID: 3851767