UNITED STATES v. SMITH (2019)

[Unpublished]

Henry Smith pleaded guilty to bank robbery, 18 U.S.C. § 2113(a). At sentencing, the district court ¹ determined that he was a career offender based on two previous federal bank-robbery convictions and imposed a within-Guidelines-range sentence of 151 months in prison. See U.S.S.G. § 4B1.1(a)–(b). In an Anders brief, Smith’s counsel requests permission to withdraw and identifies the applicability of the career-offender classification and a two-level Guidelines enhancement as two issues for us to consider on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

We conclude that the district court did not plainly err in classifying Smith as a career offender. See United States v. Harper, 869 F.3d 624, 626–27 (8th Cir. 2017) (holding that “bank robbery by intimidation under § 2113(a) is a crime of violence” under the Guidelines); see also United States v. Callaway, 762 F.3d 754, 759 (8th Cir. 2014) (explaining that, when a defendant fails to object to an alleged procedural error, we review it for plain error). In light of this conclusion, we need not address Smith’s alternative argument about a Guidelines enhancement that had no effect on his sentence. See United States v. LeGrand, 468 F.3d 1077, 1082 (8th Cir. 2006).

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 Susan O. Hickey, Chief Judge, United States District Court for the Western District of Arkansas.

PER CURIAM.