United States v. Bjorn Luster

PER CURIAM. Bjorn Luster directly appeals the within-Guidelines-range sentence the district court 1 imposed after he pled guilty to possessing a destructive device. His counsel has moved to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that the district court procedurally erred by basing its selection of Luster’s sentence on an unproven fact, and that the court imposed a substantively unreasonable sentence. Upon careful review, we conclude that the district court did not procedurally err or impose a substantively unreasonable sentence. See United States v. Feemster, 572 F.3d 455, 460-61 (8th Cir.2009) (en banc) (setting forth standards for reviewing sentencing decisions; where sentence falls within Guidelines range, appeals court may, but is not required to, apply presumption of reasonableness); see also United States v. Bolanos, 409 F.3d 1045, 1048 (8th Cir.2005) (where there are two permissible views of evidence, factfinder’s choice between them cannot be clearly erroneous). Having independently reviewed the record in accordance with Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous issues. Accordingly, counsel’s motion to withdraw is granted, and the judgment is affirmed. Footnotes [1] The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.