United States v. Derick Mack, No. 13-3235 (8th Cir. 2015)
Annotate this CaseCourt Description: Per Curiam - Before Wollman, Murphy and Gruender, Circuit Judges] Criminal case - Criminal law and sentencing. Anders case. Search warrants were supported by probable cause; no error in denying motion to dismiss as there was no showing of prosecutorial misconduct; no error in enhancing defendant's sentence for possession of three firearms, possession of a stolen firearm and possession of the firearms in connection with another felony; no abuse of discretion in the court's decision to vary upwards.
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 13-3235 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Derick James Mack lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Western District of Missouri - Springfield ____________ Submitted: April 27, 2015 Filed: May 11, 2015 [Unpublished] ____________ Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges. ____________ PER CURIAM. A jury found Derick James Mack guilty of two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and the district court1 sentenced him to concurrent terms of 120 months in prison and 3 years of supervised release. Mack appeals, and his counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967), challenging pretrial rulings and Mack’s sentence on procedural and substantive grounds. For the reasons that follow, we affirm. First, we agree with the district court that the issuance of both search warrants in this case was supported by probable cause, see United States v. Dukes, 758 F.3d 932, 936–37 (8th Cir. 2014), and we find no abuse of discretion in the denial of an evidentiary hearing, see United States v. Lucca, 377 F.3d 927, 931 (8th Cir. 2004). We also find the district court was correct in denying Mack’s motions to dismiss, because there was no showing of prosecutorial misconduct, improper charges, a restoration of civil rights, or a violation of Mack’s right to a speedy trial. See United States v. Adejumo, 772 F.3d 513, 521–22 (8th Cir. 2014), cert. denied, 2015 WL 1164389 (2015); United States v. Darden, 688 F.3d 382, 387 (8th Cir. 2012); United States v. Sonczalla, 561 F.3d 842, 844 (8th Cir. 2009). As for Mack’s sentence, upon de novo review of the district court’s application of the Guidelines, and clear-error review of its findings of fact, see United States v. Betts, 509 F.3d 441, 445 (8th Cir. 2007), we find no error in the district court’s enhancement of Mack’s offense level for his possession of three firearms, his possession of a stolen firearm, and his possession of the firearms in connection with another felony offense. See United States v. Vega, 720 F.3d 1002, 1003 (8th Cir. 2013); United States v. Mahone, 688 F.3d 907, 909–10 (8th Cir. 2012). We also find no abuse of discretion in the district court’s decision to vary upward based on the court’s articulated reasons. See United States v. Hentges, 779 F.3d 820, 822–23 (8th Cir. 2015). 1 The Honorable Brian C. Wimes, United States District Judge for the Western District of Missouri. -2- Finally, after conducting independent review under Penson v. Ohio, 488 U.S. 75 (1988), we find no nonfrivolous issues. Accordingly, we affirm the judgment of the district court, we deny Mack’s motion for appointment of new counsel, and we grant counsel’s motion to withdraw, subject to counsel informing Mack about procedures for seeking rehearing or filing a petition for certiorari. ______________________________ -3-
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