Opinions are for Monday, May 21, 2018 

DISCLAIMER:  The following unofficial case summaries are prepared by the clerk's office
                           as a courtesy to the reader.  They are not part of the opinion of the court.

163454P.pdf     05/21/2018  Merwyn Levering  v.  United States
   U.S. Court of Appeals Case No:  16-3454
   U.S. District Court for the District of Nebraska - Omaha   
   [PUBLISHED] [Colloton, Author, with Loken, Circuit Judges] 
   [Filed Pursuant to Eighth Circuit Rule 47E] Criminal Case - Armed Career 
   Criminal Act. Upon resentencing following the decision in Johnson v. 
   United States and determination that one of Levering’s prior convictions 
   was no longer a violent felony, the district court determined Levering was 
   still an armed career criminal based on two 1994 Iowa convictions for 
   assault while participating in a felony. Levering argued the two Iowa 
   convictions occurred on a single occasion and should be counted as one 
   predicate offense. Because Levering committed two assaults on the same 
   date but at different times in different counties against different 
   victims, and thus were “committed on occasions different from one 
   another,” the district court did not err in counting the two convictions 
   as two separate qualifying convictions. The sentence, in which district 
   court varied downward from the advisory guideline range by 22 months, was 
   substantively reasonable and there was no abuse of discretion. 
  
172065P.pdf     05/21/2018  United States  v.  Francisco Hernandez-Espinoza
   U.S. Court of Appeals Case No:  17-2065
   U.S. District Court for the Northern District of Iowa - Ft. Dodge   
   [PUBLISHED] [Arnold, Author, with Colloton and Shepherd, Circuit Judges] 
   Criminal Case - sentence. After challenging inclusion of a deferred 
   prosecution to a third-degree criminal sexual conduct charge as a history 
   point and the probation officer’s agreement to exclude the assessment of 
   the criminal history point, it was not error for district court to 
   consider the conduct in determining whether to vary upward; and it was not 
   error to include the charge in "Adult Criminal Conviction" section rather 
   than the "other arrests" section of the presentence investigation report. 
   District court's imposition of fine was not error, as district court 
   explicitly found he had the ability to pay the fine; the district court 
   did not err in considering his pretrial services report to impeach the 
   defendants for purposes of fixing a sentence; and the district court did 
   not err in imposing the fine before allocution. 
  
172497U.pdf     05/21/2018  United States  v.  James Bowman
   U.S. Court of Appeals Case No:  17-2497
   U.S. District Court for the Western District of Missouri - Kansas City   
   [UNPUBLISHED] [Per Curiam. Before Wollman, Shepherd, and Erickson, Circuit 
   Judges] 
   Criminal Case - sentence. Upon resentencing, the district court plainly 
   erred in applying a Guidelines enhancement no longer in effect. District 
   court also erred in imposing the mandatory minimum seven-year sentence 
   under 18 U.S.C. sec. 924(c)(1)(A)(ii) because the verdict form was 
   ambiguous on whether Bowman brandished or merely possessed the firearm. 
   Sentence is vacated and remanded for resentencing. 
  
172895U.pdf     05/21/2018  United States  v.  Curtis Wordes
   U.S. Court of Appeals Case No:  17-2895
   U.S. District Court for the Northern District of Iowa - Ft. Dodge   
   [UNPUBLISHED] [Per Curiam. Before Wollman, Colloton, and Shepherd, Circuit 
   Judges] 
   Criminal Case - Anders. District court’s statement that it would 
   sentence Wordes to the same sentence whether or not his two prior felony 
   convictions were crimes of violence renders any arguable error in 
   calculating the Guidelines range harmless. Alternative upward variance was 
   not substantively unreasonable.