United States v. Ivan Barker, Jr.

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, Kermit E. Bye and Steven M. Colloton (UNPUBLISHED); Granting [4058469-2] motion to withdraw as counsel filed by Ms. Angela Lorene Pitts. [4126160] [13-2044]

United States Court of Appeals
For the Eighth Circuit
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No. 13-2044
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Ivan Barker, Jr.
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Hot Springs
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Submitted: February 7, 2014
Filed: February 24, 2014
[Unpublished]
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Before LOKEN, BYE, and COLLOTON, Circuit Judges.
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PER CURIAM.
Ivan Barker, Jr., appeals following the district court’s imposition of sentence
upon his guilty plea to a drug-related offense, in violation of 21 U.S.C. § 856(a)(2).
His counsel seeks leave to withdraw, filing a brief under Anders v. California, 386
U.S. 738 (1967), in which he argues that the sentence is greater than necessary to
satisfy the goals of sentencing under 18 U.S.C. § 3553(a), and that the district court

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erred in weighing sentencing factors. In a pro se supplemental brief, Barker argues
(1) the district court miscalculated his criminal history score, because two of his prior
sentences should have been counted as only one; (2) the district court erred in
determining the quantity of drugs used to determine his Guidelines offense level; and
(3) the district court wrongly denied his motion to suppress, and he has a Sixth
Amendment right to have this court address the issue on direct appeal. Having
carefully considered all of the foregoing arguments, we affirm.
First, by pleading guilty unconditionally, Barker gave up any direct-appeal
right to challenge the ruling on his motion to suppress, see United States v. Limley,
510 F.3d 825, 827 (8th Cir. 2007), and we reject his related Sixth Amendment
argument. Second, Barker did not object below to the district court’s determination
of drug quantity, or to any portion of the presentence report (PSR) upon which the
court relied in determining drug quantity, and we find that the court did not err,
plainly or otherwise. See United States v. Montanye, 996 F.2d 190, 192 (8th Cir.
1993) (en banc) (plain-error review applies when issues are not raised in district
court); United States v. Douglas, 646 F.3d 1134, 1137 (8th Cir. 2011) (court may
accept as true facts in PSR to which defendant did not object).
Likewise, we review only for plain error Barker’s argument about the
calculation of his criminal history score, because he did not object below. The PSR
shows that the two prior sentences at issue were imposed on the same day, after two
separate arrests. We cannot discern from the PSR, however, whether Barker was
arrested for the first offense before he committed the second offense. If he was not,
then the district court plainly erred in separately counting the prior sentences. See
U.S.S.G. § 4A1.2(a) (prior sentences are counted separately if they were for offenses
separated by intervening arrest (i.e., defendant is arrested for first offense prior to
committing second offense); otherwise sentences are counted separately unless they
resulted from offenses in same charging instrument, or were imposed on same day).
Barker’s filings on appeal, however, demonstrate that he was arrested for the first
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offense before he committed the second offense, and the government could have
established this fact had Barker timely objected. In these circumstances, we are not
presented with an error that seriously affects the fairness, integrity, or public
reputation of judicial proceedings and that provides us with authority to exercise
discretion to correct a plain error. See United States v. Pirani, 406 F.3d 543, 550 (8th
Cir. 2005) (en banc).
Finally, we reject the Anders brief argument that Barker’s sentence was
substantively unreasonable. See United States v. Feemster, 572 F.3d 455, 461, 464
(8th Cir. 2009) (en banc). Accordingly, the judgment of the district court is affirmed,
and we grant counsel’s motion to withdraw.
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