United States v. Brandon Kinnear ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-2138
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Brandon David Kinnear,
lllllllllllllllllllllDefendant - Appellant,
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Appeal from United States District Court
for the Southern District of Iowa - Council Bluffs
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Submitted: May 18, 2018
Filed: August 6, 2018
[Unpublished]
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Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.
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PER CURIAM.
Brandon Kinnear pleaded guilty to unlawful possession of a firearm as a
previously convicted felon. See 18 U.S.C. § 922(g)(1). At sentencing, the district
court1 increased Kinnear’s base offense level under USSG § 2K2.1(a)(2) after
concluding that Kinnear had sustained two prior felony convictions for a “crime of
violence.” Because Kinnear’s guideline range was greater than the ten-year statutory
maximum penalty, the statutory maximum became the guideline sentence under
USSG § 5G1.1, and the court sentenced Kinnear to 120 months’ imprisonment.
Kinnear appeals, arguing that the court committed procedural error in determining
that he had two prior convictions for a crime of violence, rather than only one.
Because the district court made clear that it would sentence Kinnear to 120 months
regardless of the guideline calculation, any potential error was harmless, and we
affirm the judgment.
The sentencing guidelines provide for a base offense level of 20 if a defendant
unlawfully possesses a firearm “subsequent to sustaining one felony conviction of . . .
a crime of violence.” USSG § 2K2.1(a)(4)(A). But if a defendant has two such
qualifying convictions, the guidelines provide for a base offense level of 24. Id.
§ 2K2.1(a)(2). Kinnear contends that the court improperly concluded that one of his
prior convictions—a 2014 conviction in Iowa for assault with intent to inflict serious
injury—is a crime of violence, and that he therefore had sustained only one qualifying
conviction. Without the four-level increase under § 2K2.1(a)(2), Kinnear’s guideline
range would have been 92 to 115 months.
There are some debatable questions about whether Kinnear’s assault conviction
counts as a crime of violence, but we need not address them in light of the district
court’s explanation at sentencing. The court said that whether § 2K2.1(a)(2) applied
based on the prior assault conviction was “an academic issue” that “[did] not control
the sentence,” because “the court would have sentenced in the same fashion anyway.”
In other words, even if Kinnear’s guideline range were 92 to 115 months, the court
1
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
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would have varied upward and sentenced him to a term of 120 months. The court
highlighted the seriousness of Kinnear’s firearms offense, and explained that
Kinnear’s criminal history raised a “serious concern” that he might endanger the
public by committing future crimes. The court therefore concluded that “under all of
the circumstances of this case,” 120 months was the appropriate sentence. The
court’s rationale was sufficient to support a modest upward variance from 115 to 120
months, if necessary, and any error in the guideline calculation was therefore
harmless. See United States v. Dace, 842 F.3d 1067, 1069-70 (8th Cir. 2016).
The judgment of the district court is affirmed.
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