United States v. Nathaniel Burn

Filing

PER CURIAM OPINION FILED - THE COURT: Steven M. Colloton, Pasco M. Bowman and Raymond W. Gruender (UNPUBLISHED); Granting [4367347-2] motion to withdraw as counsel filed by Mr. Alfred E. Willett.; Granting [4419173-2] motion to supplement his brief filed by Appellant Mr. Nathaniel Burns. [4457756] [15-3904]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3904
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Nathaniel Burns
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: September 7, 2016
Filed: October 12, 2016
[Unpublished]
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Before COLLOTON, BOWMAN, and GRUENDER, Circuit Judges.
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PER CURIAM.
After Nathaniel Burns pleaded guilty to a drug conspiracy offense, the District
Court sentenced him to 240 months in prison, representing a downward variance
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The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.

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from the calculated Guidelines range. Burns appeals, and his counsel has filed a brief
under Anders v. California, 386 U.S. 738 (1967), challenging the drug-quantity
calculation; the assessment of enhancements for possessing a firearm, aggravating
role, and a pattern of criminal conduct engaged in as a livelihood; and the denial of
an acceptance-of-responsibility adjustment. In pro se supplemental filings, Burns
challenges the denial of his motion to withdraw his guilty plea and further challenges
the firearm enhancement in light of Johnson v. United States, 135 S. Ct. 2551 (2015).
For the reasons that follow, we affirm.
We review a district court’s Guidelines determinations de novo and the
underlying factual findings for clear error. United States v. Turner, 781 F.3d 374,
393 (8th Cir.), cert. denied, 136 S. Ct. 208, 280, 493 (2015). We have reviewed the
record, including the testimony of law enforcement officials, confidential informants,
and cooperating witnesses introduced during the two-day sentencing hearing. We
uphold the District Court’s conservative drug-quantity finding, which was based on
testimony that the court deemed credible regarding drug quantities obtained from a
supplier, converted into cocaine base, and redistributed. See U.S. Sentencing
Guidelines Manual § 2D1.1(c)(3); United States v. Young, 689 F.3d 941, 945 (8th
Cir. 2012), cert. denied, 133 S. Ct. 902, 1475 (2013). Similarly, the enhancements
for possession of a firearm, aggravating role, and commission of the offense as part
of a pattern of criminal conduct engaged in as a livelihood were all supported by
witness testimony that the District Court found credible. See U.S. Sentencing
Guidelines Manual §§ 2D1.1(b)(1), (b)(15)(E) & cmt. n.20(C); 3B1.1(a); 4B1.3 cmt.
nn.1–2; United States v. Savage, 414 F.3d 964, 966 (8th Cir. 2005) (discussing
dangerous-weapon enhancement); United States v. Vasquez, 552 F.3d 734, 737 (8th
Cir. 2009) (discussing aggravating-role enhancement); United States v. Morris, 791
F.3d 910, 914–15 (8th Cir. 2015) (discussing assessment for “a pattern of criminal
conduct engaged in as a livelihood”). We also affirm the District Court’s decision to
deny an acceptance-of-responsibility adjustment, given the timing of Burns’s guilty
plea, his attempt to withdraw the plea, and his denial of offense conduct. See United
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States v. Rodriguez, 741 F.3d 908, 912–13 (8th Cir.), cert. denied135 S. Ct. 133
(2014).
As for Burns’s pro se arguments, we find no support in the record for his
allegations that the District Court improperly participated in plea negotiations.
Further, we find no abuse of discretion in the District Court’s decision—made
following a hearing—to deny Burns’s request to withdraw his guilty plea based on
his misgivings about sentencing and a belief that his attorney could counter certain
prosecution evidence. See United States v. Alvarado, 615 F.3d 916, 920–21 (8th Cir.
2010). Finally, the Supreme Court’s Johnson decision that Burns cites has no
application to his offense-level enhancement for possession of a firearm.
We have independently reviewed the record under Penson v. Ohio, 488 U.S.
75, 80 (1988), and we find no nonfrivolous issues for review. Accordingly, we affirm
the judgment of the District Court, and we grant counsel’s motion to withdraw and
Burns’s motion to supplement his brief.
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