USA v. Stephen Erhart

1The 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. 04-2804
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Aaron T. Fant, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 21, 2005
Filed: July 21, 2005
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Before SMITH, FAGG, and MAGILL, Circuit Judges.
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PER CURIAM.
Aaron Fant appeals the 77-month prison sentence the district court1 imposed
after he pleaded guilty to being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2). Fant’s counsel has moved to withdraw and filed a
brief under Anders v. California, 386 U.S. 738 (1967), arguing that Fant’s sentence
is excessive.

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-2-
Construing this argument as an Eighth Amendment challenge, we find that the
sentence does not violate the Eighth Amendment. See United States v. Farmer, 73
F.3d 836, 840 (8th Cir.) (only in very narrow circumstances has punishment within
statutory limits been held to violate Eighth Amendment; holding that life in prison
without parole under “three-strikes” law does not violate Eighth Amendment).
Construing Fant's argument as a challenge to his sentence under United States
v. Booker, 125 S. Ct. 738 (2005), we find that he has not demonstrated plain error
because there is nothing in the record to suggest that he would have received a more
favorable sentence under an advisory guideline system. See United States v. Pirani,
406 F.2d 543, 550, 552 (8 th Cir. 2005) (en banc).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we find no nonfrivolous issues. Accordingly, we grant counsel’s motion to
withdraw, and we affirm.
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