United States v. Glen Shepard , 340 F. App'x 349 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2469
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Glen R. Shepard, *
* [UNPUBLISHED]
Appellant. *
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Submitted: July 30, 2009
Filed: August 6, 2009
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Before WOLLMAN, RILEY, and SMITH, Circuit Judges.
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PER CURIAM.
Glen R. Shepard (Shepard) pled guilty to being a felon in possession of
ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), and to being an
unlawful user of methamphetamine in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(3) and 924(e)(1). The district court1 sentenced Shepard to 180
months in prison as an armed career criminal (ACC) under section 924(e), which
mandates a minimum sentence of 180 months for a section 922(g) offender who has
three previous convictions for a violent felony or a serious drug offense committed on
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
occasions different from one another. Shepard appeals, and his counsel has moved
to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), arguing that the
sentence is unreasonable. Shepard raises multiple pro se arguments and has moved
for appointment of new counsel. For the reasons discussed below, we affirm the
judgment, grant counsel’s motion to withdraw, and deny Shepard’s motion for new
counsel.
Shepard’s pro se arguments, which we address seriatim, fail: (1) his
ineffective-assistance claims are not properly before us in this direct criminal appeal,
see United States v. Ramirez-Hernandez, 449 F.3d 824, 827 (8th Cir. 2006); (2) we
do not address his challenge to the presentence report’s recommendation of a 4-level
enhancement for possessing a firearm in connection with another felony offense,
because his offense level instead was calculated based on his ACC status under
section 924(e) and U.S.S.G. § 4B1.4(a), and thus the 4-level enhancement had no
effect on his advisory Guidelines sentencing range, see United States v. Moore, 108
F.3d 878, 880 n.2 (8th Cir. 1997); (3) Shepard’s Kansas conviction for involuntary
manslaughter is a violent felony for purposes of sections 924(e) and 4B1.4, see 18
U.S.C. § 924(e)(2)(B) (defining “violent felony”); Kan. Stat. Ann. § 21-3404
(defining involuntary manslaughter); U.S.S.G. § 4B1.2, app. n.1 (declaring
manslaughter is a “crime of violence”); United States v. Williams, 537 F.3d 969, 971
(8th Cir. 2008) (stating court has never recognized difference between “crime of
violence” and “violent felony”); (4) as to Shepard’s newly raised argument that his
Missouri conviction for second-degree burglary is not a violent felony, we find no
error, plain or otherwise, see 18 U.S.C. § 924(e)(2)(B) (defining violent felony in
relevant part as “burglary”); Mo. Rev. Stat. § 569.170(1) (defining second-degree
burglary); United States v. Bell, 445 F.3d 1086, 1090-91 (8th Cir. 2006) (holding a
Missouri commercial burglary conviction for entering a building amounted to generic
burglary under Taylor v. United States, 495 U.S. 575, 599 (1990), and therefore was
a crime of violence); United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en
banc) (declaring errors not properly preserved are reviewed for plain error only); and
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(5) because Shepard has at least one other qualifying predicate felony triggering ACC
status, we do not consider his newly raised argument that his auto-tampering
conviction is not a violent felony.
Because Shepard was properly sentenced as an armed career criminal, the
Anders-brief challenge to his sentence fails. See United States v. Gregg, 451 F.3d
930, 937 (8th Cir. 2006) (explaining “Booker2 does not relate to statutorily-imposed
sentences”). Having reviewed the record in accordance with Penson v. Ohio, 488 U.S.
75, 80 (1988), we find no nonfrivolous issues for appeal. Accordingly, we affirm the
judgment, we grant counsel’s motion to withdraw upon counsel’s compliance with
Fed. R. App. P. 27(a), and we deny Shepard’s motion for new counsel.
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2
United States v. Booker, 543 U.S. 220 (2005).
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