Opinion
No. 16-3581
07-25-2017
United States of America Plaintiff - Appellee v. Zachary Joseph Love, also known as Zackary Joseph Love Defendant - Appellant
Appeal from United States District Court for the District of Nebraska - Lincoln [Unpublished] Before GRUENDER, BOWMAN and SHEPHERD, Circuit Judges. PER CURIAM.
Zachary Love directly appeals the below-Guidelines-range sentence the district court imposed after he pleaded guilty to a drug charge. His counsel has moved for leave to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967), questioning the district court's Guidelines calculations and suggesting that Love's sentence is substantively unreasonable. Love has filed a motion for new counsel.
The Honorable John M. Gerrard, United States District Judge for the District of Nebraska. --------
To begin, we conclude that Love waived any claim of error with regard to the drug quantity attributed to him by withdrawing his objection to the calculation at sentencing. See United States v. Stoney End of Horn, 829 F.3d 681, 687-88 (8th Cir. 2016) (where defendant withdrew objection to PSR enhancement in district court, claim of error on appeal was waived). Further, we find that there was no plain error in the calculation of Love's criminal history score. See United States v. Lovelace, 565 F.3d 1080, 1087 (8th Cir. 2009) (failure to object at sentencing results in review for plain error that affects substantial rights); United States v. Menteer, 408 F.3d 445, 446 (8th Cir. 2005) (per curiam) (unobjected-to facts in PSR are deemed admitted).
Finally, we conclude that the district court did not impose a substantively unreasonable sentence. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (discussing appellate review of sentencing decisions); United States v. McCauley, 715 F.3d 1119, 1127 (8th Cir. 2013) (noting that when district court has varied below Guidelines range, it is "nearly inconceivable" that court abused its discretion in not varying downward further). In addition, we have independently reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), and have found no nonfrivolous issues for appeal. Accordingly, we grant counsel's motion to withdraw, deny Love's motion, and affirm the judgment.