UNITED STATES v. BERNHARDT (2019)

United States Court of Appeals, Eighth Circuit.

UNITED STATES of America Plaintiff - Appellee v. Calvin BERNHARDT Defendant - Appellant

No. 19-1158

Decided: September 06, 2019

Before LOKEN, GRUENDER, and KOBES, Circuit Judges. Nicholas Whitney Chase, Assistant U.S. Attorney, U.S. Attorney's Office, District of North Dakota, Fargo, ND, Gary Lee Delorme, Assistant U.S. Attorney, Jonathan O'Konek, Assistant U.S. Attorney, U.S. Attorney's Office, District of North Dakota, Bismarck, ND, for Plaintiff-Appellee Calvin Bernhardt, Pro Se

[Unpublished]

After this court vacated one conviction and remanded for resentencing, United States v. Bernhardt, 903 F.3d 818 (8th Cir. 2018), the district court ¹ sentenced Calvin Bernhardt to 480 months in prison. Bernhardt appeals, and his counsel has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which he seeks permission to withdraw and identifies as a possible issue the district court’s failure to confirm at the resentencing hearing that counsel and Bernhardt had discussed the revised presentence report. In a pro se supplemental brief, Bernhardt argues that the district court’s omission violated Federal Rule of Criminal Procedure 32(i)(1)(A).

After carefully reviewing the Rule 32 argument for plain error, we find none. See United States v. Callaway, 762 F.3d 754, 759 (8th Cir. 2014) (procedural errors not objected to at sentencing are reviewed for plain error; to establish plain error, defendant must show error that is plain and affects substantial rights). In addition, having independently reviewed the resentencing record under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous issues for appeal. Accordingly, we grant counsel leave to withdraw, and we affirm.

FOOTNOTES

1.   The Honorable Daniel L. Hovland, Chief Judge, United States District Court for the District of North Dakota.

PER CURIAM.