United States v. Ruth Kane

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3370
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Isom Rogers, *
* [UNPUBLISHED]
Appellant. *
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Submitted: March 31, 2011
Filed: April 15, 2011
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Before BYE, ARNOLD, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Isom Rogers pleaded guilty to two counts of bank fraud, each with a maximum
penalty of 30 years in prison. See 18 U.S.C. § 1344. The district court sentenced1
Rogers to concurrent prison terms of 120 months, varying upward from the advisory
Guidelines imprisonment range of 51-63 months after discussing at length his
unusually violent criminal history. Rogers appeals. His counsel has moved to
withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967),
The Honorable Mark W. Bennett, United States District Judge for the1
Northern District of Iowa.

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suggesting that the court erred by varying upward and by not reducing Rogers’s
offense level based on acceptance of responsibility.
We conclude that the district court did not err in sentencing Rogers above the
advisory Guidelines range. See United States v. Feemster, 572 F.3d 455, 461 (8th
Cir. 2009) (en banc) (sentence is reviewed under abuse-of-discretion standard, first
ensuring that district court committed no significant procedural error, and then
considering substantive reasonableness of sentence). The district court correctly
calculated the Guidelines range, carefully considered the 18 U.S.C. § 3553(a)
sentencing factors, and thoroughly explained why the variance was warranted. See
18 U.S.C. § 3553(a)(1) (sentencing factors include history and characteristics of
defendant); Gall v. United States, 552 U.S. 38, 51 (2007) (reviewing court must give
due deference to sentencing court’s decision that § 3553(a) factors justify variance);
United States v. Ruvalcava-Perez, 561 F.3d 883, 887 (8th Cir. 2009) (finding extent
of variance reasonable where sentencing court considered defendant’s prior criminal
conduct and need to protect society). Further, the court emphasized that it would
impose the same sentence whether it granted or denied a reduction for acceptance of
responsibility. Cf. United States v. Jackson, 594 F.3d 1027, 1030 (8th Cir. 2010)
(when record is clear that court intended to impose same sentence regardless of
whether particular Guidelines provision applied, alleged error in applying provision
was harmless).
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues. Accordingly, we grant counsel’s motion
to withdraw, and we affirm.
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