United States v. Charles Weissinger , 262 F. App'x 727 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1578
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Charles Weissinger, * [UNPUBLISHED]
*
Appellant. *
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Submitted: February 1, 2008
Filed: February 5, 2008
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Before BYE, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.
Pursuant to a written plea agreement, Charles Weissinger pleaded guilty to
possessing a firearm after having three previous felony convictions for burglary, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The district court1 sentenced
Weissinger at the top of his advisory Guidelines range to 235 months in prison, plus
3 years of supervised release. On appeal, Weissinger’s counsel has moved to
withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967).
1
The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
Weissinger has moved for new counsel. For the reasons discussed below, we grant
counsel’s motion, deny Weissinger’s motion, and affirm.
Counsel argues that Weissinger’s prior burglary convictions should not be
considered violent felonies within the meaning of section 924(e). Reviewing for plain
error, see United States v. Patterson, 481 F.3d 1029, 1034 (8th Cir. 2007) (failure to
raise issue at sentencing results in plain-error review on appeal), we conclude that the
district court did not plainly err in enhancing Weissinger’s sentence based on his prior
burglary convictions, see 18 U.S.C. § 924(e)(2)(B)(ii) (definition of “violent felony”
includes burglary); Mo. Rev. Stat. § 569.170 (person commits crime of burglary in
second degree when he knowingly enters unlawfully or knowingly remains unlawfully
in building or inhabitable structure for purpose of committing crime therein); Taylor
v. United States, 495 U.S. 575, 599 (1990) (concluding that person has been convicted
of burglary for purposes of § 924(e) enhancement if he is convicted of any crime,
regardless of exact definition or label, having basic elements of unlawful or
unprivileged entry into, or remaining in, building or structure, with intent to commit
crime).
Counsel also argues that the sentence is unreasonable because the district court
relied too heavily on Weissinger’s criminal history. Upon careful review, we
conclude that the sentence is not unreasonable. See United States v. Long Soldier, 431
F.3d 1120, 1123 (8th Cir. 2005) (standard of review).
After carefully reviewing the record in accordance with Penson v. Ohio, 488
U.S. 75 (1988), we have found no nonfrivolous issues.
Accordingly, we grant counsel’s motion to withdraw, deny Weissinger’s motion
for new counsel, and affirm.
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