United States v. T. Allen, Sr.

Filing

CORRECTED OPINION FILED - THE COURT: DIANA E. MURPHY, STEVEN M. COLLOTON and RAYMOND W. GRUENDER. Original Opinion filed on: 11/06/2013. **Correction to opinion: at page 2, 2nd paragraph, third line, third word- changing the word "Nebraska" to "Nevada"** [4093447] [13-1478]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-1478
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
T. Wayne Allen, Sr.
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: November 1, 2013
Filed: November 6, 2013 (Corrected November 6, 2013)
[Unpublished]
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Before MURPHY, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
T. Wayne Allen pleaded guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). After finding that Allen was an armed career

Appellate Case: 13-1478

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Date Filed: 11/06/2013 Entry ID: 4093447

criminal (ACC), and in accordance with the written plea agreement, the district court1
sentenced him to 180 months in prison and 4 years of supervised release. On appeal,
Allen’s counsel has moved to withdraw and has filed a brief under Anders v.
California, 386 U.S. 738 (1967), arguing that the court erred in finding that Allen was
the person who committed the ACC predicate offenses.
After reviewing the evidence presented at the sentencing hearing, we conclude
that the district court did not clearly err in finding that Allen was the person convicted
of the Nevada robbery convictions at issue. See United States v. Urbina-Mejia, 450
F.3d 838, 839 (8th Cir. 2006) (court did not clearly err in finding that defendant had
prior conviction based on data from National Crime Information Center (NCIC) and
testimony of probation officer, where defendant provided no evidence that NCIC
report was unreliable). Accordingly, the district court properly sentenced him as an
ACC. See 18 U.S.C. § 924(e)(1) (ACC status applies to person who violates § 922(g)
and has three previous convictions for violent felony or serious drug offense).
Further, having reviewed the record pursuant to Penson v. Ohio, 488 U.S. 75, 80
(1988), we find no nonfrivolous issues.
Accordingly, we affirm the judgment of the district court, and we grant
counsel’s motion to withdraw, subject to counsel informing Allen about procedures
for seeking rehearing or filing a petition for certiorari.
______________________________

1

The Honorable James E. Gritzner, Chief Judge, United States District Court
for the Southern District of Iowa.
-2-

Appellate Case: 13-1478

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Date Filed: 11/06/2013 Entry ID: 4093447