UNITED STATES v. LEWIS (2019)

[Unpublished]

Keenan Lewis appeals after he pleaded guilty to Hobbs Act robbery and an 18 U.S.C. § 924(c) firearm offense, and the district court ¹ sentenced him to a total of 150 months in prison. His counsel has moved to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that the court erred in applying a Guidelines enhancement and in denying an acceptance-of-responsibility reduction. In a pro se Federal Rule of Appellate Procedure 28(j) letter, Lewis argues that United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), holding that 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague, invalidated his conviction on the firearm offense.

Upon careful review, we conclude that the district court did not err in its application of the Guidelines. See United States v. Davenport, 910 F.3d 1076, 1081-83 (8th Cir. 2018) (standard of review; explaining that application of sentencing enhancements must be supported by preponderance of evidence); United States v. Jensen, 834 F.3d 895, 901 (8th Cir. 2016) (stating that denial of acceptance-of-responsibility reduction will be reversed only if it is so clearly erroneous as to be without foundation). We further conclude that Lewis has failed to show that he benefits from Davis, as we have previously held that Hobbs Act robbery qualifies as a “crime of violence” under the “force clause” of 18 U.S.C. § 924(c)(3)(A). See Diaz v. United States, 863 F.3d 781, 783 (8th Cir. 2017).

Having independently reviewed the record under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no non-frivolous issues for appeal. Accordingly, we affirm, and we grant counsel leave to withdraw.

FOOTNOTES

1.   The Honorable Rebecca Goodgame Ebinger, United States District Judge for the Southern District of Iowa.

PER CURIAM.