United States v. Ronald Daniels , 366 F. App'x 724 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2376
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
Ronald Travis Daniels, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 18, 2010
Filed: February 25, 2010
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Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
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PER CURIAM.
Ronald Daniels appeals from the 168-month sentence that the District Court1
imposed after he pleaded guilty to receiving child pornography. Counsel has moved
to withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967). In
an untimely pro se supplemental brief, which we grant Daniels leave to file, he argues
that (1) the District Court erred in applying a base offense level of 32 and a 2-level
enhancement under U.S.S.G. § 2G2.1(b)(2)(A); (2) his sentence is unreasonable; and
1
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
(3) the government breached its promise that he would receive a five-year sentence
in exchange for his plea. We reject these arguments, and we affirm.
First, because Daniels did not object to the Guidelines calculations in the
District Court, we review only for plain error, and we find none. See United States
v. Nichols, 151 F.3d 850, 854 (8th Cir. 1998) (standard of review). The facts support
the base offense level and the 2-level enhancement. See U.S.S.G. § 2G2.2(c) (noting
that § 2G2.1 applies "[i]f the offense involved causing . . . a minor to engage in
sexually explicit conduct for the purpose of producing a visual depiction of such
conduct"); U.S.S.G. § 2G2.1(a), (b)(2)(A) (setting base offense level of 32 and
requiring 2-level increase if offense involved "sexual contact"); U.S.S.G. § 2G2.1 cmt.
n.2 ("'Sexual contact' has the meaning given that term in 18 U.S.C. § 2246(3).").
Second, we conclude that the sentence is not unreasonable. See United States
v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (standard of review); United
States v. Toothman, 543 F.3d 967, 970 (8th Cir. 2008) ("A sentence within the
Sentencing Guidelines range is accorded a presumption of substantive reasonableness
on appeal . . . ."). Third, the record refutes Daniels’s argument that the government
induced his plea with promises of a five-year sentence. See Blackledge v. Allison,
431 U.S. 63, 74 (1977) ("Solemn declarations in open court carry a strong
presumption of verity.").
Finally, having reviewed the record independently under Penson v. Ohio, 488
U.S. 75, 80 (1988), we have found no nonfrivolous issues for appeal. Accordingly,
we affirm, and we grant counsel’s motion to withdraw.
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