United States v. Cortez White


PER CURIAM OPINION FILED - THE COURT: James B. Loken, Michael J. Melloy and Duane Benton (UNPUBLISHED); Granting [3987415-2] motion to withdraw as counsel filed by Mr. Lenny Kagan. [4041731] [12-3043]

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 12-3043 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Cortez White, also known as Tez lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Eastern District of Missouri - St. Louis ____________ Submitted: May 31, 2013 Filed: June 4, 2013 [Unpublished] ____________ Before LOKEN, MELLOY, and BENTON, Circuit Judges. ____________ PER CURIAM. After Cortez White pleaded guilty to drug-trafficking offenses, the district court sentenced him to 151 months in prison and five years of supervised release. 1 1 The Honorable Henry E. Autrey, United States District Judge for the Eastern District of Missouri. Appellate Case: 12-3043 Page: 1 Date Filed: 06/04/2013 Entry ID: 4041731 He now brings this appeal in which his counsel has moved to withdraw, and argues in a brief filed under Anders v. California, 386 U.S. 738 (1967), that the district court should not have credited the sentencing testimony of a police officer in assessing a firearm enhancement under U.S.S.G. § 2D1.1. Upon careful review of the sentencing transcript, we defer to the district court’s credibility finding, see United States v. Mickelson, 378 F.3d 810, 822 (8th Cir. 2004), and we conclude that the court did not err in assessing the firearm enhancement, see United States v. Canania, 532 F.3d 764, 770 (8th Cir. 2008) (standard of review), based on the police officer’s testimony that he found a loaded and cocked firearm near the front door of a residence where White was present--along with drugs, drug paraphernalia, and cash, see U.S.S.G. § 2D1.1, comment. (n.3); United States v. Fladten, 230 F.3d 1083, 1086 (8th Cir. 2000) (per curiam) (evidence that weapon was found in same location as drugs or drug paraphernalia usually suffices). Significantly, White told the officer that he kept the firearm to protect “product and money.” Further, having independently reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), we find no nonfrivolous issues for appeal. Accordingly, we affirm, and we grant counsel leave to withdraw. ______________________________ -2- Appellate Case: 12-3043 Page: 2 Date Filed: 06/04/2013 Entry ID: 4041731

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