United States v. Loyton Franci

Filing

PER CURIAM OPINION FILED - THE COURT: Duane Benton, Pasco M. Bowman and Bobby E. Shepherd (UNPUBLISHED); Denying [4084875-2] motion to withdraw as counsel filed by Ms. Chelsea Wilson Cash. [4114993] [13-2499]

United States Court of Appeals
For the Eighth Circuit
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No. 13-2499
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Loyton Scott Francis
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: January 14, 2014
Filed: January 17, 2014
[Unpublished]
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Before BENTON, BOWMAN, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Loyton Francis directly appeals after he pleaded guilty to possessing child
pornography and the District Court1 sentenced him to 120 months in prison, plus a
1

The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.

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lifetime term of supervised release. His counsel has moved to withdraw and has filed
a brief under Anders v. California, 386 U.S. 738 (1967), arguing that (1) Francis’s
lifetime term of supervised release is substantively unreasonable and (2) Francis was
improperly denied credit for acceptance of responsibility.
Upon careful review, we first conclude that the District Court did not err in
denying Francis credit for acceptance of responsibility or otherwise commit any
significant procedural error at sentencing. See United States v. Boettger, 316 F.3d
816, 817 (8th Cir. 2003) (noting that appellate court reviews district court’s
acceptance-of-responsibility findings for clear error, giving great deference to court’s
factual determinations and reversing only if finding is so clearly erroneous that it
lacks foundation, and concluding that district court did not err in finding defendant’s
conduct inconsistent with acceptance of responsibility); see also United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (noting that appellate court
reviews imposition of sentences under deferential abuse-of-discretion standard, first
ensuring that district court committed no significant procedural error and then
considering the substantive reasonableness of sentence imposed). We further
conclude that Francis’s lifetime term of supervised release is not substantively
unreasonable. See United States v. Hyer, 498 F. App’x 658, 660 (8th Cir. 2013)
(rejecting challenge to substantive reasonableness of lifetime term of supervised
release because, inter alia, term fell within Guidelines range of five years to life); cf.
United States v. Munjak, 669 F.3d 906, 907–08 (8th Cir. 2012) (observing in case
involving child-pornography offense that defendant’s sentence, including supervised
release for life, was not substantively unreasonable). In addition, we have
independently reviewed the record in accordance with Penson v. Ohio, 488 U.S. 75,
80 (1988), and have found no nonfrivolous issues. Accordingly, we affirm.
As for counsel’s motion to withdraw, we conclude that allowing counsel to
withdraw at this time would not be consistent with the Eighth Circuit’s 1994
Amendment to Part V of the Plan to Implement The Criminal Justice Act of 1964.
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We therefore deny counsel’s motion to withdraw as premature, without prejudice to
counsel refiling the motion upon fulfilling the duties set forth in the Amendment.
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Date Filed: 01/17/2014 Entry ID: 4114993