OPINIONS ARE POSTED DAILY BETWEEN 10:00 and 11:00 a.m. Today is: [ Tuesday May 22, 2018 ] - - - - - NO OPINIONS HAVE BEEN POSTED TODAY The most recent opinions are for: [ 05/21/2018 ]  
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.