United States v. Ivan Avila, No. 17-1921 (8th Cir. 2017)
Annotate this CaseCourt Description: Per Curiam. Before Gruender, Murphy, and Shepherd, Circuit Judges] Criminal Case - Anders. The district court did not procedurally err in applying the guidelines enhancement for possessing a firearm in connection with the drug offense under section 2D1.1(b)(1). [ December 20, 2017
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 17-1921 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Ivan Avila lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Northern District of Iowa - Sioux City ____________ Submitted: December 11, 2017 Filed: December 21, 2017 [Unpublished] ____________ Before GRUENDER, MURPHY, and SHEPHERD, Circuit Judges. ____________ PER CURIAM. Ivan Avila directly appeals after he pleaded guilty to drug offenses, and the district court1 sentenced him below the calculated guidelines range. His counsel has 1 The Honorable Leonard T. Strand, Chief Judge, United States District Court for the Northern District of Iowa. moved for leave to withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the district court erred in applying a guidelines enhancement for possessing a firearm in connection with the drug offenses, under U.S.S.G. § 2D1.1(b)(1). After careful consideration, we conclude that the district court committed no procedural error, that the government met its burden of proof, and that the district court did not clearly err in applying the challenged enhancement. See U.S.S.G. § 2D1.1(b)(1), cmt. n. 11 (stating that the enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense); cf. United States v. Savage, 414 F.3d 964, 967 (8th Cir. 2005) (holding that the district court did not clearly err in applying § 2D1.1(b)(1) enhancement where the firearm was readily accessible to the defendant and would be available to him in case of a dispute during a drug transaction). Having independently reviewed the record pursuant to Penson v. Ohio, 488 U.S. 75 (1988), we find no nonfrivolous issues for appeal. We thus grant counsel’s motion to withdraw and affirm. ______________________________ -2-
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