UNITED STATES v. MOORE (2019)

United States Court of Appeals, Eighth Circuit.

UNITED STATES of America, Plaintiff - Appellee, v. Timothy MOORE, Defendant - Appellant.

No. 19-1226

Decided: October 28, 2019

Before COLLOTON, SHEPHERD, and ERICKSON, Circuit Judges. Benecia Betton Moore, Assistant United States Attorney, U.S. Attorney's Office, Eastern District of Arkansas, Little Rock, AR, for Plaintiff-Appellee Timothy Moore, Pro Se

[Unpublished]

Timothy Moore appeals after he pleaded guilty to possessing a prohibited object in prison, and the district court ¹ sentenced him to a prison term at the low end of the advisory sentencing guidelines range. 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 she seeks permission to withdraw. Counsel argues that the district court erred in calculating Moore’s criminal history score by assessing three criminal history points based on a prior conviction for which he had been sentenced to three years in prison, but had served only 60 days. Counsel also argues that the district court imposed a substantively unreasonable sentence.

Upon careful review, we conclude that the district court correctly calculated Moore’s criminal history score, as he was sentenced to 3 years in prison for the prior conviction at issue. Criminal history points are based on the sentence pronounced, not the length of time actually served, as long as the defendant actually served some period of imprisonment. See U.S.S.G. §§ 4A1.1(a); 4A1.2, comment. (n.2). We further conclude that the district court did not impose a substantively unreasonable sentence. See generally United States v. Feemster, 572 F.3d 455, 461-62 (8th Cir. 2009) (en banc). The district court adequately considered the sentencing factors listed in 18 U.S.C. § 3553(a) by discussing Moore’s criminal history and inability to conform his conduct to the law. See United States v. Gray, 533 F.3d 942, 943-44 (8th Cir. 2008). In addition, we presume that a sentence within the advisory guidelines range is substantively reasonable. See United States v. Callaway, 762 F.3d 754, 760 (8th Cir. 2014).

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

FOOTNOTES

1.   The Honorable Brian S. Miller, United States District Judge for the Eastern District of Arkansas.

PER CURIAM.