Darrin Scott Walker v. Michael Bowersox

1The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1507
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Emmanuel Herron, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 29, 2008
Filed: May 2, 2008
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Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal, Emmanuel Herron (Herron) challenges the district
court’s 1 judgment entered upon a jury verdict finding Herron guilty of drug and
firearm offenses. Herron’s counsel has moved to withdraw and has filed a brief under
Anders v. California, 386 U.S. 738 (1967), challenging the admission of evidence
derived from a warrantless entry. Because Herron did not file a motion to suppress
in the district court, we are “not in a position to intelligently and responsibly” conduct
plain error review of the matter. See United States v. Wenner, 417 F.2d 979, 981-82

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-2-
(8th Cir. 1969) (refusing to consider a Fourth Amendment argument asserted for first
time on appeal; noting the plain error rule should be applied with caution, not
liberally, and should be invoked only to avoid a clear miscarriage of justice).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues.
We affirm the judgment of the district court, and we grant counsel’s motion to
withdraw.
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