United States v. Thomas King ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-3502
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri
Thomas F. King, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 7, 2000
Filed: February 18, 2000
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Before McMILLIAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Thomas King appeals from the final judgment entered in the District Court1 for
the Western District of Missouri upon his guilty plea to possessing an unregistered
firearm silencer, in violation of 26 U.S.C. § 5861(d). The district court sentenced
appellant to seventy-eight months imprisonment and three years supervised release.
Counsel has filed a brief and moved to withdraw pursuant to Anders v. California, 386
U.S. 738 (1967). For reversal, counsel suggests the district court erred in (1) assigning
1
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
criminal history points to King’s three Missouri municipal court convictions noted in
the criminal history set forth in the presentence report (PSR), (2) determining that King
was a “prohibited person” for purposes of establishing his base offense level under
U.S.S.G. § 2K2.1(a)(4)(B) (1998), (3) determining that King possessed 8-12 firearms
warranting a 3-level enhancement under U.S.S.G. § 2K2.1(b)(1)(C) (1998), and
(4) determining that King possessed the firearms in connection with another felony
offense, resulting in an additional 4-level enhancement under U.S.S.G. § 2K2.1(b)(5).
Although we granted King permission to file a pro se supplemental brief, he has not
done so. For the reasons discussed below, we affirm the judgment of the district court.
Although King had initially objected to the PSR’s use of all three municipal court
convictions in calculating his criminal history, at sentencing he withdrew his objections
to the use of two of the convictions. Because he intentionally relinquished or
abandoned these claims of error below, we need not review them on appeal. See
United States v. Olano, 507 U.S. 725, 733 (1993). The probation officer presented to
the district court certified municipal court records verifying the third conviction, which
the district court properly relied upon in overruling King’s objection. See U.S.S.G.
§ 6A1.3(a) (1998) (court may rely on information which has sufficient indicia of
reliability, without regard to its admissibility under rules of evidence).
At sentencing, King conceded that he met the definition of a prohibited person
by being an unlawful user of controlled substances, see U.S.S.G. § 2K2.1, comment.
(n.6) (1998), and conceded that he possessed at least 8 firearms at the time of his
arrest. Under Olano, therefore, we also need not review his claims that the district
court erred in making these determinations.
Finally, King did not argue below that he did not possess the firearms in
connection with another felony offense; he only argued that applying an enhancement
on that basis constituted impermissible double-counting. Accordingly, we review for
plain error, see United States v. Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (en
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banc), and we find none because the district court properly relied upon the unobjected-
to factual portions of the presentence report which establish that King possessed the
firearms in connection with another felony offense, possession of a controlled
substance, see Fed. R. Crim. P. 32(b)(6)(D) (district court may accept unobjected-to
portions of PSR); United States v. Rodamaker, 56 F.3d 898, 902 (8th Cir. 1995)
(district court may rely on facts in PSR where objections are to conclusions drawn from
facts, not to facts themselves).
After review of counsel’s Anders brief, along with our independent review of the
record in accordance with Penson v. Ohio, 488 U.S. 75 (1988), we find no nonfrivolous
issues. Accordingly, we affirm the judgment of the district court and grant counsel’s
motion to withdraw.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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