United States v. Michael Karolu

Filing

PER CURIAM OPINION FILED - THE COURT: ROGER L. WOLLMAN, MICHAEL J. MELLOY and BOBBY E. SHEPHERD (UNPUBLISHED); Granting [3882157-2] motion to withdraw as counsel, subject to counsel advising the appellant of the procedures for filing a petition for writ of certiorari in the Supreme Court pro se. Counsel for appellant's request for oral argument is denied as moot. [3934013] [11-3824]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 11-3824
___________
United States of America,
Appellee,
v.
Michael Karolus,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* District of North Dakota.
*
* [UNPUBLISHED]
*
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Submitted: July 12, 2012
Filed: July 20, 2012
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Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal, Michael Karolus challenges the sentence the
district court1 imposed after he pled guilty to possession of child pornography. His
counsel has moved to withdraw, and has filed a brief under Anders v. California, 386
U.S. 738 (1967), arguing that the district court improperly sentenced Karolus for
conduct other than his offense of conviction, and requesting oral argument.

1

The Honorable Ralph R. Erickson, Chief Judge, United States District Court
for the District of North Dakota.

Appellate Case: 11-3824

Page: 1

Date Filed: 07/20/2012 Entry ID: 3934013

Upon careful review, we conclude that the district court did not commit any
significant procedural error in sentencing Karolus, and that the sentence imposed is
substantively reasonable. 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; if sentence is within Guidelines range, appellate
court may apply presumption of reasonableness); United States v. Stults, 575 F.3d
834, 849 (8th Cir. 2009) (sentence was not unreasonable where record reflected that
district court made individualized assessment based on facts presented and specifically
addressed defendant’s proffered information in its consideration of sentencing
factors); United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005) (describing ways
in which court might abuse its discretion at sentencing); see also 18 U.S.C. §
3553(a)(1), (2)(C) (in determining particular sentence to be imposed, court shall
consider, inter alia, nature and circumstances of offense, and need for sentence to
protect public from further crimes of defendant); United States v. Gutierrez, 437 F.3d
733, 737 (8th Cir. 2006) (after United States v. Booker, 543 U.S. 220 (2005), judicial
fact-finding is permitted under advisory Guidelines); United States v. Galloway, 976
F.2d 414, 424-25 (8th Cir. 1992) (en banc) (Supreme Court has long held that
sentencing on basis of offenses for which defendant has not been charged or convicted
does not necessarily violate due process).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we find no nonfrivolous issue. Accordingly, we grant counsel’s motion to
withdraw, and we affirm. We also deny as moot counsel’s request for oral argument.
Accordingly, we grant counsel's motion to withdraw, subject to counsel
advising the appellant of the procedures for filing a petition for writ of certiorari in the
Supreme Court pro se.
______________________________

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Appellate Case: 11-3824

Page: 2

Date Filed: 07/20/2012 Entry ID: 3934013