United States of America v. Damien Deandre Burnett, also known as Luck

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-2989
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Damien Deandre Burnett, also known as Luck
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: April 24, 2020
Filed: April 29, 2020
[Unpublished]
____________
Before BENTON, WOLLMAN, and GRASZ, Circuit Judges.
____________
PER CURIAM.
Damien Burnett appeals after he pled guilty to a drug offense, and the district
court1 sentenced him to a prison term below the advisory range under the United
1The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.

-- 1 of 2 --

States Sentencing Guidelines Manual (“Guidelines”). His counsel has moved to
withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967),
arguing Burnett’s sentence is substantively unreasonable. Burnett has filed a pro se
brief reiterating the arguments in the Anders brief, and has moved for new counsel.
We conclude the district court did not impose an unreasonable sentence. See
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (describing
appellate review of sentence for procedural error and then substantive
reasonableness). First, we conclude the district court’s factual findings were not
clearly erroneous in light of the evidence presented at sentencing. See United States
v. Bryant, 913 F.3d 783, 786 (8th Cir. 2019) (reviewing application of Guidelines de
novo and findings of fact for clear error). Next, we conclude Burnett’s sentence is
not substantively unreasonable. See Feemster, 572 F.3d at 461-62 (reviewing
sentence under deferential abuse-of-discretion standard and discussing substantive
reasonableness); see also United States v. McCauley, 715 F.3d 1119, 1127 (8th Cir.
2013) (noting it is “nearly inconceivable” a district court abused its discretion by not
varying downward further when it has varied below the Guidelines range).
Having reviewed the record pursuant to Penson v. Ohio, 488 U.S. 75 (1988),
we find no nonfrivolous issues. Accordingly, we deny Burnett’s motion for
appointment of new counsel, we affirm, and we grant counsel leave to withdraw.
______________________________
-2-

-- 2 of 2 --