United States v. David Ekman ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-2393
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
David Scott Ekman,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: November 14, 2022
Filed: November 29, 2022
[Unpublished]
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Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
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PER CURIAM.
David Ekman appeals the sentence the district court1 imposed after he pleaded
guilty to a child pornography offense. His counsel has moved to withdraw, and has
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
filed a brief under Anders v. California, 386 U.S. 738 (1967), challenging the
sentence. Ekman has filed a pro se brief raising the same challenges.
We conclude that the district court did not clearly err in applying the
vulnerable-victim enhancement, as the evidence presented at sentencing supported
the court’s finding that Ekman knew or should have known about the victim’s
vulnerabilities. See U.S.S.G. § 3A1.1(b), comment. (n.2). Nor did the court err in
departing upward under U.S.S.G. § 5K2.3, as the evidence showed that Ekman was
a mental health counselor who knew the victim had previously been sexually abused
by family members, see United States v. Rose, 315 F.3d 956, 958 (8th Cir. 2003), and
that his abuse caused the victim to restrict her activities and suffer significant mental
health issues. See United States v. White Twin, 682 F.3d 773, 776 (8th Cir. 2012);
United States v. Pergola, 930 F.2d 216, 219 (2d Cir. 1991).
Ekman’s sentence was not unreasonable, as there is no indication that the
district court overlooked a relevant factor, gave significant weight to an improper or
irrelevant factor, or committed a clear error of judgment in weighing the relevant
factors. See United States v. David, 682 F.3d 1074, 1077 (8th Cir. 2012); United
States v. Pickar, 666 F.3d 1167, 1169 (8th Cir. 2012).
To the extent Ekman is also attempting to challenge his conviction, we
conclude that he waived his right to do so. Eckman’s statements at the plea hearing
show that he entered into the plea agreement knowingly and voluntarily. See United
States v. Michelsen, 141 F.3d 867, 871-72 (8th Cir. 1998); cf. United States v. Andis,
333 F.3d 886, 890-91 (8th Cir. 2003); Nguyen v. United States, 114 F.3d 699, 703
(8th Cir. 1997).
We have also independently reviewed the record under Penson v. Ohio, 488
U.S. 75 (1988), and we find no non-frivolous issues for appeal. Accordingly, we
affirm, and we grant counsel’s motion to withdraw.
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