UNITED STATES v. MCBRAYER (2019)

[Unpublished]

Edward McBrayer pleaded guilty to being a felon in possession of a firearm and ammunition, 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court ¹ sentenced him to a prison term below his advisory Sentencing Guidelines range. In an Anders brief, McBrayer’s counsel raises procedural error at sentencing and the substantive reasonableness of the sentence as potential issues on appeal and requests permission to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

We conclude that there was no procedural error. See United States v. Feemster, 572 F.3d 455, 461–62 (8th Cir. 2009) (en banc) (discussing appellate review of sentencing decisions). The district court correctly calculated McBrayer’s Guidelines range; adequately considered a host of relevant factors, including those that he had raised; and did not rely on clearly erroneous findings. See id. at 460 (listing potential procedural errors).

McBrayer’s sentence is also substantively reasonable. See United States v. Black, 670 F.3d 877, 882 (8th Cir. 2012) (stating that it is “nearly inconceivable” that a below-Guidelines-range sentence is substantively unreasonable (citation omitted)). The record establishes that the district court sufficiently considered the statutory factors, 18 U.S.C. § 3553(a), when it sentenced him. See United States v. Wohlman, 651 F.3d 878, 887 (8th Cir. 2011).

We have also independently reviewed the record under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and conclude that there are no non-frivolous issues for appeal. Accordingly, we affirm the judgment and grant counsel permission to withdraw.

FOOTNOTES

1.   The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri.

PER CURIAM.