United States of America v. Brian Tyrone Brand

United States Court of Appeals
For the Eighth Circuit
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No. 23-1263
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Brian Tyrone Brand
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: October 2, 2023
Filed: October 5, 2023
[Unpublished]
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Before COLLOTON, GRUENDER, and ERICKSON, Circuit Judges.
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PER CURIAM.
Brian Brand appeals the within-Guidelines-range sentence the district court1
imposed after he pled guilty to an ammunition offense. His counsel has moved for
1The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

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leave to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738
(1967), arguing the district court erred in applying a cross reference to the provision
for attempted second-degree murder to calculate his advisory Guidelines
imprisonment range.
Having reviewed the record, we conclude the district court did not err in
calculating the Guidelines range using the cross-reference. See United States v.
Tunley, 664 F.3d 1260, 1262 (8th Cir. 2012) (reviewing district court’s factual
findings in applying cross reference for clear error and its application of Guidelines
de novo); see also United States v. Conley, No. 21-2094, 2022 WL 2979771, at *2
(8th Cir. 2022) (unpublished per curiam) (affirming application of cross-reference to
Guidelines provision for attempted second-degree murder; noting case law showing
that shooting at group of people demonstrates specific intent to kill). Further, we
have reviewed the record independently under Penson v. Ohio, 488 U.S. 75 (1988),
and have found no non-frivolous issues for appeal.
Accordingly, we affirm the judgment, and we grant counsel’s motion to
withdraw.
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