United States v. Steven Vandewalker , 560 F. App'x 637 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-3606
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Steven Lee Vandewalker
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa, Waterloo
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Submitted: June 6, 2014
Filed: June 11, 2014
[Unpublished]
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Before BYE, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Steven Vandewalker pleaded guilty to bank robbery, in violation of 18 U.S.C.
§§ 2113(a) & (d), and the district court1 sentenced him to 235 months in prison and
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
5 years of supervised release, and ordered restitution of $30,005.38. On appeal, in
a brief filed under Anders v. California, 386 U.S. 738 (1967), Vandewalker argues
that the district court abused its discretion in granting the government’s motion and
departing upward from the Guidelines imprisonment range calculated in the
presentence report based on Vandewalker’s under-represented criminal history score
and dismissed conduct, and that the court imposed an unreasonable sentence.
Vandewalker acknowledges considerable unscored convictions, but argues the
departure was erroneous because the conduct involved mainly petty offenses, with no
violence until the present offense, and that the criminal history score adequately
accounted for his conduct. He also argues that the departure based on the conduct
underlying the dismissed charges undercut the plea bargain. We conclude, however,
in light of the parties’ express reservation of the right to argue departures, that the
district court did not abuse its discretion in departing upward. See U.S.S.G. §§ 4A1.3
(district court may depart upward “[i]f reliable information indicates that the
defendant’s criminal history category substantially under-represents the seriousness
of [his] criminal history or the likelihood that [he] will commit other crimes”);
5K2.21 (district court may impose upward departure for dismissed or uncharged
conduct, in order to “reflect the actual seriousness of the offense,” based on conduct
underlying charge dismissed as part of plea agreement which did not otherwise enter
into determination of Guideline range); United States v. White Twin, 682 F.3d 773,
775-77 (8th Cir. 2012) (standard of review); United States v. Schwalk, 412 F.3d 929,
932-34 (8th Cir. 2005) (departure based on under-represented criminal history);
United States v. Bolden, 368 F.3d 1032, 1035 (8th Cir. 2004) (departure based on
conduct underlying dismissed charge).
Further, we conclude the sentence was substantively reasonable, especially in
light of the district court’s statement that it would have varied upward even if it had
not departed, based on factors such as the seriousness of the offense, Vandewalker’s
unprovoked assault on a bank customer, the terror inflicted upon the bank employees,
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and Vandewalker’s history and present aggressiveness and dangerousness. See
United States v. Feemster, 572 F.3d 455, 461-62 (8th Cir. 2009) (en banc) (deferential
abuse-of-discretion standard applies in reviewing substantive reasonableness of
sentence; reviewing court may not require extraordinary circumstances to justify
sentence constituting departure).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we have found no nonfrivolous issues. Accordingly, we grant counsel’s
motion to withdraw and affirm the judgment of the district court.
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