Opinion
No. 10-3574.
Submitted: March 2, 2011.
Filed: March 7, 2011.
Appeal from the United States District Court for the Western District of Missouri.
Randall M. England, Jefferson City, MO, for appellant.
Jim Y. Lynn, Asst. U.S. Atty., Jefferson City, MO, for appellee.
Before MELLOY, GRUENDER, and BENTON, Circuit Judges.
[UNPUBLISHED]
Dale Olten pleaded guilty to being a felon in possession of firearms in violation of 18 U.S.C. §§ 922(c)(1) and 924(e) (Count 1), and possessing stolen firearms in violation of 18 U.S.C. § 922(j) (Count 2). The district court sentenced him to concurrent prison terms of 235 months on Count 1 and 120 months on Count 2, and 5 years of supervised release. His counsel has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), seeking to withdraw; stating that Olten should be allowed to withdraw his plea because of errors at the plea hearing, see Fed.R.Crim.P. 11; and arguing that the court committed procedural error in sentencing Olten and imposed an unreasonable sentence because the court over-stated the amount of stolen property found at Olten's residence.
The Honorable Nanette K. Laughrey, United States District Judge for the Western District of Missouri.
We find no indication that the unobjected-to Rule 11 errors influenced Olten's decision to plead guilty, see United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (plain error review), and we conclude that Olten's request to withdraw his plea is not cognizable on appeal, see United States v. Murphy, 899 F.2d 714, 716 (8th Cir. 1990). Further, we do not agree that the district court overstated the amount of stolen property, and we conclude that the court took into account all the relevant sentencing factors, committed no procedural error, and imposed a substantively reasonable sentence. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (in reviewing sentence, appellate court first ensures that district court committed no significant procedural error, and then considers substantive reasonableness of sentence under abuse-of-discretion standard; if sentence is within Guidelines range, appellate court may apply presumption of reasonableness); United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005) (describing abuse of discretion).
Having reviewed the record under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous issues. Accordingly, we grant counsel leave to withdraw, and we affirm the judgment.