Opinion
No. 05-1569.
Submitted: April 2, 2007.
Filed: April 11, 2007.
Appeal from the United States District Court for the Western District of Missouri.
Brian J. Gepford, Gepford Gepford, Kansas City, MO, for appellant.
Bobby Joe Simms, Rochester, MN, pro se.
Jim Y. Lynn, Asst. U.S. Atty., Jefferson City, MO, for appellee.
Before RILEY, HANSEN, and MELLOY, Circuit Judges.
[UNPUBLISHED]
Bobby Joe Simms (Simms) appeals the district court's sentence of 57 months' imprisonment for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922 (g)(1) and 924(a)(2). The court ordered Simms's sentence to run concurrently with a state sentence for drug-trafficking convictions. On appeal, Simms's counsel moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel in his Anders brief and Simms in a pro se supplemental brief argue the district court violated the Fifth and Sixth Amendments by using judge-found facts at sentencing, which were neither admitted by Simms nor proven to a jury beyond a reasonable doubt, to support the enhancements to Simms's base offense level.
The Honorable Nanette K. Laughrey, United States District Judge for the Western District of Missouri.
We hold there was no Booker error because the district court did not treat the Guidelines as mandatory. See United States v. Booker, 543 U.S. 220, 311-14, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Hines, 472 F.3d 1038, 1040 (8th Cir. 2007) (per curiam) (concluding after Booker judges can make factual findings as long as the United States Sentencing Guidelines are treated as advisory).
Having reviewed the record independently pursuant to Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous issues. Accordingly, we grant counsel's motion to withdraw and we affirm.