United States v. Kenneth Frowner

Eighth Circuit

United States v. Kenneth Frowner

44 F. App'x 53

CourtCourt of Appeals for the Eighth Circuit

DecidedAugust 23, 2002

Docket02-1637

StatusUnpublished

This text of 44 F. App'x 53 (United States v. Kenneth Frowner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Kenneth Frowner, 44 F. App'x 53 (8th Cir. 2002).

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*54 PER CURIAM.

Kenneth Frowner pleaded guilty to armed bank robbery, in violation of 18 U.S.C. §§ 2 and 2113(a) and (d). In accordance with Frowner’s plea agreement, the district court 1 sentenced him to 160 months imprisonment and 5 years supervised release. The court also ordered him to pay $145,632.16 in restitution. On appeal, counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967), arguing that the district court erred in finding that Frowner was a career offender. In his pro se supplemental brief, Frowner argues that the career-offender enhancement violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and that the district court plainly erred in not addressing each of his objections to the presentence report (PSR).

The district court did not err in imposing the 160-month sentence to which Frowner had agreed. See United States v. Nguyen, 46 F.3d 781, 783 (8th Cir.1995). Moreover, (1) Frowner did not object to the paragraphs of the PSR describing the prior robbery and drug offenses that made the career-offender enhancement applicable, see U.S.S.G. §§ 4B1.1, 4B1.2 comment. (n.l); United States v. Montanye, 996 F.2d 190, 192-93 (8th Cir.1993) (en banc); (2) Apprendi does not apply because Frowner was sentenced to less than the statutory maximum of 25 years, see 18 U.S.C. § 2113(d); United States v. Miller, 295 F.3d 824, 827-28 (8th Cir.2002); and (3) any failure of the district court to address each of Frowner’s objections was harmless, see Fed.R.Crim.P. 52(a). Following our independent review, see Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivo-lous issues.

Accordingly, we grant counsel’s motion to withdraw, and we affirm.

1

. The HONORABLE ROBERT W. PRATT, United States District Judge for the Southern District of Iowa.

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*54 PER CURIAM.

Kenneth Frowner pleaded guilty to armed bank robbery, in violation of 18 U.S.C. §§ 2 and 2113(a) and (d). In accordance with Frowner’s plea agreement, the district court 1 sentenced him to 160 months imprisonment and 5 years supervised release. The court also ordered him to pay $145,632.16 in restitution. On appeal, counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967), arguing that the district court erred in finding that Frowner was a career offender. In his pro se supplemental brief, Frowner argues that the career-offender enhancement violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and that the district court plainly erred in not addressing each of his objections to the presentence report (PSR).

The district court did not err in imposing the 160-month sentence to which Frowner had agreed. See United States v. Nguyen, 46 F.3d 781, 783 (8th Cir.1995). Moreover, (1) Frowner did not object to the paragraphs of the PSR describing the prior robbery and drug offenses that made the career-offender enhancement applicable, see U.S.S.G. §§ 4B1.1, 4B1.2 comment. (n.l); United States v. Montanye, 996 F.2d 190, 192-93 (8th Cir.1993) (en banc); (2) Apprendi does not apply because Frowner was sentenced to less than the statutory maximum of 25 years, see 18 U.S.C. § 2113(d); United States v. Miller, 295 F.3d 824, 827-28 (8th Cir.2002); and (3) any failure of the district court to address each of Frowner’s objections was harmless, see Fed.R.Crim.P. 52(a). Following our independent review, see Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivo-lous issues.

Accordingly, we grant counsel’s motion to withdraw, and we affirm.

1

. The HONORABLE ROBERT W. PRATT, United States District Judge for the Southern District of Iowa.

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