United States v. Adrian Milligan

• Court: Court of Appeals for the Eighth Circuit
• Decided: December 19, 2023
• Docket: 22-2480
• Status: Unpublished

Opinion

United States Court of Appeals For the Eighth Circuit ___________________________

No. 22-2480 ___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Adrian D. Milligan

lllllllllllllllllllllDefendant - Appellant ____________

Appeal from United States District Court for the Western District of Missouri - Kansas City ____________

Submitted: December 14, 2023 Filed: December 19, 2023 [Unpublished] ____________

Before LOKEN, SHEPHERD, and KOBES, Circuit Judges. ____________

PER CURIAM.

Adrian Milligan appeals the sentence imposed by the district court1 following resentencing on his conviction for a firearm offense. His counsel has moved for leave

1 The Honorable Brian C. Wimes, United States District Judge for the Western District of Missouri. to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967), challenging the sentence.

Upon careful review, we conclude that the district court correctly calculated Milligan’s offense level. See United States v. Turner, 781 F.3d 374, 393 (8th Cir. 2015) (construction and application of Guidelines are reviewed de novo). Specifically, the record supported the enhancement for possessing a stolen firearm. See United States v. Pazour, 609 F.3d 950, 952 (8th Cir. 2010) (for the purposes of the Guidelines, “stolen” includes all felonious or wrongful takings with the intent to deprive the owner of the rights and benefits of ownership, regardless of whether or not the theft constitutes common law larceny). We also conclude that the district court did not err by failing to order a new presentence report (PSR) for resentencing. See United States v. Quintieri, 306 F.3d 1217, 1234 (2d Cir. 2002) (updated PSR is not required for resentencing where parties are given full opportunity to be heard and to supplement PSR as needed).

We further conclude that the district court did not impose a substantively unreasonable sentence. See United States v. Feemster, 572 F.3d 455, 461-62 (8th Cir. 2009) (en banc) (sentences are reviewed for substantive reasonableness under deferential abuse of discretion standard; abuse of discretion occurs when court fails to consider relevant factor, gives significant weight to improper or irrelevant factor, or commits clear error of judgment in weighing appropriate factors). The record establishes that the district court adequately considered the sentencing factors listed in 18 U.S.C. § 3553(a). See United States v. Callaway, 762 F.3d 754, 760 (8th Cir. 2014) (on appeal, within-Guidelines-range sentence may be presumed reasonable).

We have also independently reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), and we find no non-frivolous issues for appeal. Accordingly, we affirm the judgment, and grant counsel’s motion to withdraw. ______________________________

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