United States v. Brandon Lovell

Filing

[4350187-2] [4361322] [14-3277]OPINION FILED - THE COURT: Diana E. Murphy, Duane Benton and Jane Kelly AUTHORING JUDGE:Diana E. Murphy (PUBLISHED); Denying [4350187-2] motion for appointment of counsel filed by Appellant Mr. Brandon Lovell., Denying [4325716-2] motion for appointment of counsel filed by Appellant Mr. Brandon Lovell. [4361322] [14-3277]--[Edited correcting taking affirmed out and adding published 01/29/2016 by JMM]

United States Court of Appeals
For the Eighth Circuit
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No. 14-3277
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Brandon Lovell
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: December 17, 2015
Filed: January 29, 2016
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Before MURPHY, BENTON, and KELLY, Circuit Judges.
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MURPHY, Circuit Judge.
Brandon Lovell pled guilty to possession of a stolen firearm, possession of
methamphetamine with intent to distribute, and carrying a firearm during and in
relation to a drug trafficking crime. The district court1 sentenced Lovell to 180

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The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.

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months imprisonment as foreseen in his plea agreement. Lovell appeals his sentence,
and we affirm.
I.
On December 5, 2012 Lovell impersonated a police officer at the residence of
a methamphetamine dealer. Lovell pointed a rifle at the female dealer and told her
he was a police officer. When he demanded money and drugs, she complied. Several
months later, on January 23, 2013, Lovell returned to the dealer's home, stole drugs
and money, hit her in the head with a gun, and then kidnapped her in her own
automobile. The woman escaped when Lovell and his accomplice stopped at a
different residence. Thereafter, on February 7, 2013, Lovell burglarized another
individual's home where he stole at least one firearm.
Lovell was arrested on February 8, 2013. On the same day, law enforcement
executed a search warrant at Lovell's residence in Culpepper, Arkansas where he
lived with his grandfather. In the home officers recovered firearms, silencers made
from oil cans, exploded and unexploded pipe bombs, a bullet proof vest, a green
jumpsuit with police patches affixed to it, and a blue light similar to the emergency
light used by law enforcement. Lovell and his grandfather both admitted that Lovell
had been detonating pipe bombs in the yard of the house.
The government charged Lovell with several crimes related to the armed
burglaries he had committed. On March 27, 2014 the parties entered into a written
plea agreement in which Lovell agreed to plead guilty to possessing a stolen firearm,
possessing methamphetamine with intent to distribute, and carrying a firearm during
and in relation to a drug trafficking crime. The remaining counts were dismissed. In
the agreement the parties recommended that the district court sentence Lovell to 180
months imprisonment under Federal Rule of Criminal Procedure 11(c)(1)(C).

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The court held an evidentiary hearing before sentencing Lovell. The court
heard testimony from his probation officer and a Bureau of Alcohol, Tobacco, and
Firearms special agent who was familiar with Lovell's criminal activity. After
receiving testimony, the court concluded that the guideline range was 60 to 71 months
for possession of a firearm and possession of methamphetamine with intent to
distribute, plus an additional 60 month minimum for carrying a firearm during and in
relation to a drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A)(i). The district
court noted that Lovell's criminal history and guideline range calculation "actually
understate[d] the seriousness" of his offenses. The court then sentenced Lovell to a
total of 180 months imprisonment, 120 months for possessing a firearm and for
possessing methamphetamine with the intent to distribute, with a consecutive 60
months for carrying a firearm during and in relation to a drug trafficking crime.
Lovell appeals his sentence.
II.
Lovell claims that the court's sentence was substantively unreasonable. We
have stated, however, that "[a] defendant who explicitly and voluntarily exposes
himself to a specific sentence [in a plea agreement] may not challenge that
punishment on appeal." United States v. Nguyen, 46 F.3d 781, 783 (8th Cir. 1995).
Here, the record shows that Lovell stipulated to a 180 month sentence in his plea
agreement. Although the guideline range for the three crimes to which Lovell pled
guilty was less than 180 months, Lovell nonetheless benefited from his plea
agreement because in it the government agreed to dismiss the remaining counts of the
indictment. Lovell accepted the benefit of the plea agreement, explicitly and
voluntarily exposing himself to a sentence of 180 months. See United States v. Cook,
447 F.3d 1127, 1128 (8th Cir. 2006).
Moreover, Lovell's sentence is not unreasonable. Absent reversible procedural
error, a district court abuses its discretion in sentencing if it "(1) fails to consider a
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relevant factor that should have received significant weight; (2) gives significant
weight to an improper or irrelevant factor; or (3) considers only the appropriate
factors but in weighing those factors commits a clear error of judgment." United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (internal quotation
marks omitted). The record shows that the district court imposed Lovell's sentence
after considering all of the 18 U.S.C. § 3553(a) factors. It appears that one of the
most significant factors in the court's sentencing decision was the "nature and
circumstances" of Lovell's offenses. The court described Lovell's conduct as "really
terrifying" and "really serious." It was within the court's discretion to give "greater
weight to the nature and circumstances of the offense than to other § 3553(a) factors."
United States v. Hummingbird, 743 F.3d 636, 638 (8th Cir. 2014). Nothing in the
record demonstrates that the district court failed to consider a relevant factor, gave
improper weight to an irrelevant factor, or committed a clear error of judgment in
weighing the appropriate factors. We conclude that Lovell's sentence was not
unreasonable.
We deny Lovell's motion requesting new counsel and raising new legal issues.
He claims ineffective assistance of counsel and argues that his sentence violates the
Double Jeopardy Clause. Lovell did not raise either issue below, and neither
ineffective assistance nor double jeopardy is evident in the record before us. Rather
than attempting to raise an ineffective assistance claim on direct appeal, Lovell may
properly initiate it in a 28 U.S.C. § 2255 motion in the district court. See United
States v. Lee, 374 F.3d 637, 654 (8th Cir. 2004).
For these reasons we affirm Lovell's sentence and deny his pending motion.
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