United States v. Brian Bear Heels

1The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2815
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Marcus J. Ware, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 6, 2006
Filed: October 11, 2006
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Before RILEY, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Marcus Ware appeals the 57-month prison sentence the district court imposed
after he pleaded guilty to being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2).1 His counsel has moved to withdraw and filed a
brief under Anders v. California, 386 U.S. 738 (1967), arguing that Ware should have
been sentenced at or below the bottom of the Guidelines range.

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-2-
We conclude that the sentence is not unreasonable. In sentencing Ware within
the undisputed Guidelines range of 46-57 months, the district court properly
considered the 18 U.S.C. § 3553(a) factors, specifically noting Ware’s significant
criminal history and the need to protect society and serve the ends of justice; and
nothing in the record rebuts the presumption that the sentence is reasonable. See
United States v. Booker, 543 U.S. 220, 260-64 (2005) (appellate courts must review
sentences for unreasonableness; sentencing courts must take into account Guidelines
and other §3553(a) factors ); United States v. Tobacco, 428 F.3d 1148, 1151 (8th Cir.
2005) (presumptively reasonable sentence can be unreasonable if district court failed
to consider relevant factor that should have received significant weight, gave
significant weight to improper or irrelevant factor, or considered only appropriate
factors but committed clear error of judgment in weighing them); United States v.
Lincoln, 413 F.3d 716, 717-18 (8th Cir.) (sentence within applicable Guidelines range
is presumptively reasonable, and defendant bears burden to rebut that presumption),
cert. denied, 126 S. Ct. 840 (2005).
Having reviewed the record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we
find no nonfrivolous issues. Accordingly, we affirm the district court’s judgment and
grant counsel’s motion to withdraw.
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