United States v. Cornelius Carter , 489 F. App'x 136 ( 2012 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-1518
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Cornelius D. Carter
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: September 5, 2012
Filed: September 6, 2012
[Unpublished]
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LOKEN, BOWMAN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Cornelius Carter, who pleaded guilty to being a felon in possession of a firearm,
appeals from the sentence the District Court1 imposed after the court applied the
1
The Honorable James E. Gritzner, Chief Judge, United States District Court
for the Southern District of Iowa.
U.S.S.G. § 2K2.1(c) cross-reference (possession of a firearm in connection with
another offense). Carter’s counsel has moved to withdraw and has filed a brief under
Anders v. California, 386 U.S. 738 (1967), challenging the sufficiency of the evidence
to support the finding that Carter had participated in a robbery in connection with his
possession of a firearm. Carter has filed a pro se brief arguing, inter alia, that the
District Court violated his constitutional rights by relying on certain grand-jury
testimony in making the cross-reference finding.
Upon careful review, we conclude that the District Court did not clearly err in
finding that Carter had participated in the robbery. See United States v. Tunley, 664
F.3d 1260, 1262 (8th Cir. 2012) (standard of review). In particular, we note that the
court’s factual finding was largely based upon a determination that the robbery victim
had provided credible testimony at Carter’s sentencing hearing—including a specific
identification of Carter as one of the robbers.
As to Carter’s constitutional challenge to the use of certain grand-jury
testimony, we have considered the due-process implications. See United States v.
Wise, 976 F.2d 393, 401 (8th Cir.1992) (en banc) (holding that the district court may
consider hearsay evidence during the sentencing phase of a trial because sentencing
does not constitute a separate criminal proceeding to which the right of confrontation
attaches but recognizing that in certain instances due process concerns should be
addressed), cert. denied, 507 U.S.989 (1993). Upon careful review, we find no basis
for reversal because the District Court’s finding was supported by other evidence,
including the victim’s testimony at the sentencing hearing. See United States v.
Pedroli, 979 F.2d 116, 118 (8th Cir.1992) (rejecting defendant’s contention that his
constitutional rights were violated as a result of the court’s reliance at sentencing on
hearsay evidence, noting that the hearsay evidence was corroborated at trial by the
testimony of a witness who was subjected to vigorous cross-examination and whose
credibility the trial court was able to assess); see also United States v. Thornberg, 676
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F.3d 703, 706 (8th Cir. 2012) (noting that a constitutional issue not timely asserted in
the district court is reviewed on appeal for plain error only).
We have reviewed the record independently in accordance with Penson v. Ohio,
488 U.S. 75 (1988), and we have found no nonfrivolous issues. Accordingly, we
grant counsel’s motion to withdraw, and we affirm.
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