United States v. Ricky Davis

251 F.3d 765, 2001 U.S. App. LEXIS 11220, 2001 WL 579012

Opinions

PER CURIAM.

Ricky Davis appeals the sentence of 30 months imprisonment and 3 years supervised release imposed on him by the district court¹ after he pleaded guilty to being a felon in possession of a firearm in November 1999, in violation of 18 U.S.C. § 922(g)(1). On appeal, counsel moved to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), filing a brief concerning the court’s assessment of Mr. Davis’s criminal history.

We conclude the district court did not plainly err in assessing 2 of the criminal history points, because Mr. Davis, who pleaded guilty to a state felony offense in June 1999 and received a 2-year sentence in October 1999, committed the instant offense while under a “criminal justice sentence.” See U.S.S.G. § 4Al.l(d) (“Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.”) & comment, (n.4) (“criminal justice sentence” means sentence countable under U.S.S.G. § 4A1.2 having custodial or supervisory component, although active supervision is not required); U.S.S.G. § 4A1.2(a)(l) (“prior sentence” means any sentence previously imposed upon adjudication of guilt — e.g., by guilty plea — for conduct not part of instant offense); United States v. Montanye, 996 F.2d 190, 192 (8th Cir.1993) (en banc) (standard of review for issues not raised in district court). We need not address Mr. Davis’s remaining argument challenging the assessment of an additional criminal history point under U.S.S.G. § 4Al.l(e), as the omission of such a point would not have affected his criminal history category and, consequently, would not have altered the applicable Guidelines range.

Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no non-frivolous issues for appeal.

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

Footnotes

1

. The Honorable Howard F. Sachs, United States District Judge for the Western District of Missouri.