United States v. Seab Nolen , 533 F. App'x 699 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-1715
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Seab Nolen
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: October 4, 2013
Filed: October 9, 2013
[Unpublished]
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Before SMITH, BOWMAN, and KELLY, Circuit Judges.
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PER CURIAM.
Seab Nolen pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). After finding that Nolen was an
armed career criminal (ACC), the district court1 sentenced him to 192 months in
prison and 3 years of supervised release. On appeal, Nolen’s counsel has moved to
withdraw, and in a brief filed under Anders v. California, 386 U.S. 738 (1967),
counsel argues that the court erred by (1) denying Nolen new counsel, (2) denying
Nolen’s request to withdraw his guilty plea, (3) failing to hold a status conference on
his motions for counsel and to withdraw his guilty plea, and (4) sentencing Nolen as
an ACC. Counsel also raises claims of ineffective assistance. In his pro se
supplemental brief, Nolen repeats some of these arguments, raises other ineffective-
assistance arguments, and also argues that the court violated his right to a public trial
when it closed the courtroom at his sentencing hearing.
Initially we decline to consider the ineffective-assistance arguments in this
direct appeal. See United States v. McAdory, 501 F.3d 868, 872-73 (8th Cir. 2007)
(appellate court ordinarily defers ineffective-assistance claim to 28 U.S.C. § 2255
proceedings). As to the remaining arguments, we conclude first that the court did not
abuse its discretion in declining to appoint new counsel and in denying Nolen
permission to withdraw his plea: the court gave him a full opportunity to air his
concerns, but he failed to make the required showing to justify relief as to either
matter. Further, we see no error in the court’s failure to hold a status conference. See
United States v. Gray, 152 F.3d 816, 819 (8th Cir. 1998) (discussing withdrawal of
guilty plea); United States v. Webster, 84 F.3d 1056, 1062 (8th Cir. 1996) (discussing
motion to substitute court-appointed counsel).
Second, we conclude that Nolen was properly sentenced as an ACC based on
the violent felonies in his criminal history. See 18 U.S.C. § 924(e)(2)(B); United
States v. Jones, 574 F.3d 546, 549 (8th Cir. 2009) (de novo review). Third, upon
careful review, we conclude that the sentence imposed was not unreasonable. See
1
The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.
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United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). Fourth, Nolen
has not demonstrated that the court committed plain error when it closed the
courtroom for a short period of time to privately discuss with Nolen and his counsel
the reasons for Nolen’s pro se motion for appointment of new counsel and to
withdraw his guilty plea. See United States v. Kamerud, 326 F.3d 1008, 1013 (8th
Cir. 2003) (standard of review). Finally, after reviewing the record independently
under Penson v. Ohio, 488 U.S. 75, 80 (1988), we have found no non frivolous issues
for appeal.
Accordingly, we affirm, and we grant counsel’s motion to withdraw.
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