United States of America v. Justin Tarpening, No. 10-2490 (8th Cir. 2010)

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Court Description: Criminal case - Sentencing. Anders case. Sentence was not unreasonable.

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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 10-2490 ___________ United States of America, Appellee, v. Justin L. Tarpening, Appellant. * * * Appeal from the United States * District Court for the * Western District of Missouri. * * [UNPUBLISHED] * * ___________ Submitted: October 14, 2010 Filed: October 19, 2010 ___________ Before LOKEN, MURPHY, and BENTON, Circuit Judges. ___________ PER CURIAM. After Justin Tarpening pled guilty to a weapons charge, the district court1 sentenced him to 90 months in prison and 3 years of supervised release. On appeal, counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the 90-month sentence is unreasonable. The sentence is not unreasonable. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). Relying on evidence presented at the sentencing 1 The Honorable Dean Whipple, United States District Judge for the Western District of Missouri. hearing, the district court calculated the Guidelines range over Tarpening s objections; and after recognizing the advisory nature of the Guidelines and noting that it had considered the 18 U.S.C. ยง 3553(a) sentencing factors, the court imposed a sentence within the Guidelines range. We see no procedural error, and Tarpening has not rebutted the presumptive substantive reasonableness of his within-Guidelines-range sentence. See Rita v. United States, 551 U.S. 338, 347-50 (2007); United States v. Cadenas, 445 F.3d 1091, 1094 (8th Cir. 2006). We reviewed the record independently under Penson v. Ohio, 488 U.S. 75 (1988), and found no nonfrivolous issues for appeal. Accordingly, we affirm the judgment of the district court. We grant counsel s motion to withdraw, subject to counsel informing Tarpening about procedures for seeking rehearing or filing a petition for certiorari. ______________________________ -2-

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