United States v. Robert Allen

Filing

PER CURIAM OPINION FILED - THE COURT: MICHAEL J. MELLOY, PASCO M. BOWMAN and BOBBY E. SHEPHERD (UNPUBLISHED); Granting [3798144-2] motion to withdraw as counsel filed by Ms. Michelle M. Law. [3835536] [11-2079]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-2079
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United States of America,
Appellee,
v.
Robert E. Allen, also known as
Richard Eugene Allen,
Appellant.

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*
*
* Appeal from the United States
* District Court for the
* Western District of Missouri.
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*
[UNPUBLISHED]
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*
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Submitted: September 27, 2011
Filed: October 4, 2011
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Before MELLOY, BOWMAN, and SHEPHERD, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal, Robert Allen challenges the sentence imposed by
the district court1 upon his guilty plea to failure to register as a sex offender. Counsel
moves to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738
(1967), arguing that the district court abused its discretion and committed substantive
sentencing error by sentencing Allen to the low end of the advisory Guidelines range.

1

The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.

Appellate Case: 11-2079

Page: 1

Date Filed: 10/04/2011 Entry ID: 3835536

Allen seeks appointment of new counsel and has filed a pro se supplemental brief
raising allegations of ineffective assistance of counsel.
We conclude the district court committed no significant procedural error at
sentencing. There is no indication that the court improperly applied the Guidelines,
failed to consider a relevant sentencing factor, committed a clear error of judgment in
weighing relevant factors, or failed to adequately explain its sentence; and we
conclude that Allen has not rebutted the presumption that his sentence, at the bottom
of the Guidelines range, is substantively reasonable. See Gall v. United States, 552
U.S. 38, 51 (2007) (in reviewing sentence, appellate court first ensures district court
committed no significant procedural error, and then considers sentence’s substantive
reasonableness under abuse-of-discretion standard; if sentence is within Guidelines
range, appellate court may apply presumption of reasonableness); United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (describing procedural error);
United States v. Valadez, 573 F.3d 553, 556 (8th Cir. 2009) (per curiam) (sentence at
bottom of Guidelines range is presumed reasonable).
Further, we decline to consider Allen’s ineffective-assistance claims in this
direct appeal, because the record is not appropriately developed. See United States
v. McAdory, 501 F.3d 868, 872 (8th Cir. 2007) (appellate court ordinarily defers
ineffective-assistance claims to 28 U.S.C. § 2255 proceedings). Finally, having
reviewed the record independently under Penson v. Ohio, 488 U.S. 75 (1988), we
have found no nonfrivolous issues.
Accordingly, we grant counsel’s motion to withdraw, and we affirm.
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Appellate Case: 11-2079

Page: 2

Date Filed: 10/04/2011 Entry ID: 3835536