United States v. Otho Leonard Rater

1 The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3205
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Charles M. Gilmore, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 23, 2004
Filed: April 28, 2004
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Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Charles Gilmore appeals the sentence imposed by the district court 1 after he
pleaded guilty to possessing a firearm having been convicted of a felony robbery
offense and a misdemeanor domestic-violence crime, in violation of 18 U.S.C.
§§ 922(g)(1), (9) and 924(a)(2), and making a false written statement in connection
with the acquisition of a firearm, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2).
The district court sentenced Gilmore to 77 months imprisonment and 3 years

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supervised release on both counts, to be served concurrently. Gilmore’s counsel has
filed a brief and moved to withdraw under Anders v. California, 386 U.S. 738 (1967),
arguing that the district court erred by finding that the shotgun Gilmore possessed
was stolen, and thereby enhancing his sentence 2 levels under U.S.S.G.
§ 2K2.1(b)(4).
The district court did not clearly err in concluding that Gilmore stole the
shotgun, based upon the testimony presented at sentencing. See U.S.S.G.
§ 2K2.1(b)(4); United States v. Sarabia-Martinez, 276 F.3d 447, 450 (8th Cir. 2002)
(sentencing judge’s determination of witness credibility is virtually unreviewable on
appeal); United States v. Martinez, 339 F.3d 759, 761 (8th Cir. 2003) (clear-error
review).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we have found no nonfrivolous issues. Accordingly, we affirm, and we grant
counsel’s motion to withdraw.
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