United States v. Calshaun Hicks, No. 09-1641 (8th Cir. 2010)
Annotate this CaseCourt Description: Criminal case - Sentencing. Anders case. District court did not err in concluding defendant's Nebraska conviction for attempted robbery and his federal conviction for aiding and abetting a carjacking were crimes of violence for purposes of Guidelines Sec. 4B1.2(a)(1); sentence was not unreasonable.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-1641 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Calshaun Hicks, also known as Joker, * * [UNPUBLISHED] Appellant. * ___________ Submitted: March 29, 2010 Filed: April 1, 2010 ___________ Before MELLOY, BOWMAN, and SMITH, Circuit Judges. ___________ PER CURIAM. Calshaun Hicks challenges the sentence imposed on him by the district court1 after he pleaded guilty to a cocaine-base conspiracy offense. On appeal, Hicks s counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967), and has moved to withdraw, arguing that the district court improperly sentenced Hicks as a career offender, because the two convictions underlying career offender status were not crimes of violence. See U.S.S.G. § 4B1.1 (career offender Guideline). 1 The Honorable Laurie Smith Camp, United States District Judge for the District of Nebraska. We review de novo the district court s determination that a prior conviction constitutes a crime of violence for purposes of career offender status. See United States v. Davis, 583 F.3d 1081, 1092-93 (8th Cir. 2009). We conclude that Hicks s Nebraska conviction for attempted robbery qualifies as a crime of violence. See U.S.S.G. § 4B1.2(a)(1) (defining crimes of violence as crimes that have as an element, the use, attempted use, or threatened use of physical force against the person of another ); Neb. Rev. Stat. § 28-324(1) (1989) ( person commits robbery if, with the intent to steal, he forcibly and by violence, or by putting in fear, takes from the person of another any money or personal property of any value whatever ); United States v. Sawyer, 588 F.3d 548, 555-56 (8th Cir. 2009) (attempted robbery was crime of violence); see also U.S.S.G. § 4B1.2, comment. (n.1). Hicks s federal conviction for aiding and abetting a carjacking is also a crime of violence. See 18 U.S.C. § 2119 (person commits carjacking if he takes motor vehicle from the person or presence of another by force and violence or by intimidation ); United States v. Brown, 550 F.3d 724, 728 (8th Cir. 2008) (under Guidelines, crime of violence includes offense of aiding and abetting). We reject counsel s additional argument that Hicks s sentence, which falls at the bottom of the Guidelines range, is unreasonable. See Rita v. United States, 551 U.S. 338, 347-50 (2007) (approving appellate presumption of reasonableness for sentences within properly calculated Guidelines range); United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (standard of review). Finally, having reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), for any nonfrivolous issues, we find none. Accordingly, we affirm, and we grant counsel s motion to withdraw. ______________________________ -2-
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