United States v. Deryl Abram, No. 16-1927 (8th Cir. 2016)
Annotate this CaseCourt Description: Per Curiam - Before Colloton, Murphy and Gruender, Circuit Judges] Criminal case - Criminal law and sentencing. Anders case. Defendant did not move in the district court to withdraw his guilty plea and his challenge to the voluntariness of his plea is not cognizable on appeal; the court sustained his objection to the factual predicate in the PSR, and defendant's offense level was recalculated, so his claim of procedural error is rejected; sentence was not substantively unreasonable. [ December 12, 2016
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 16-1927 ___________________________ United States of America, lllllllllllllllllllll Plaintiff - Appellee, v. Deryl Lamar Abram, lllllllllllllllllllll Defendant - Appellant. ____________ Appeal from United States District Court for the Eastern District of Missouri - St. Louis ____________ Submitted: December 7, 2016 Filed: December 13, 2016 [Unpublished] ____________ Before COLLOTON, MURPHY, and GRUENDER, Circuit Judges. ____________ PER CURIAM. After pleading guilty to drug charges, Deryl Abram appeals the district court’s1 sentence. His counsel has moved to withdraw and has filed a brief under Anders v. 1 The Honorable Rodney W. Sippel, Chief Judge, United States District Court for the Eastern District of Missouri. California, 386 U.S. 738 (1967). He argues that Abram’s plea was not voluntary or knowingly entered, that the district court procedurally erred in calculating the applicable base offense level, and the sentence was unreasonable. We conclude the argument that Abram’s plea was not voluntarily and knowingly entered is not cognizable on direct appeal because he did not move in the district court to withdraw his guilty plea. See United States v. Foy, 617 F.3d 1029, 1033-34 (8th Cir. 2010). Further, the district court did not abuse its discretion in sentencing Abram. See United States v. Feemster, 572 F.3d 455, 461-62 (8th Cir. 2009) (en banc). The court committed no procedural error, as counsel’s objection to the factual predicate in the PSR was sustained, and the offense level was re-calculated accordingly, see U.S.S.G. § 2D1.1(c)(11). The sentence was not substantively unreasonable, as within-Guidelines-range sentences may be presumed reasonable, see United States v. Callaway, 762 F.3d 754, 760 (8th Cir. 2014), and the district court imposed the sentence after considering the 18 U.S.C. § 3553(a) factors, see United States v. Miller, 557 F.3d 910, 917 (8th Cir. 2009). We have also independently reviewed the record pursuant to Penson v. Ohio, 488 U.S. 75 (1988), and have found no non-frivolous issues. Accordingly, the judgment is affirmed and counsel’s motion is granted. ______________________________ -2-
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