United States v. T. Allen, Sr.


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]

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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 ____________ Appeal from United States District Court for the Southern District of Iowa - Davenport ____________ Submitted: November 1, 2013 Filed: November 6, 2013 (Corrected November 6, 2013) [Unpublished] ____________ Before MURPHY, COLLOTON, and GRUENDER, Circuit Judges. ____________ 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 Page: 1 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 Page: 2 Date Filed: 11/06/2013 Entry ID: 4093447

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