United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-1315

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the District

v. * of Nebraska.

*

Robert K. Brown, * [UNPUBLISHED]

*

Appellant. *

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Submitted: September 26, 2006

Filed: November 22, 2006 

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Before LOKEN, Chief Judge, BEAM and GRUENDER, Circuit Judges.

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PER CURIAM.

Robert Brown entered a plea of guilty to being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). In this appeal, Brown alleges that the

district court erred by not making specific factual findings in response to his

objections to the presentence investigation report (PSR). Brown objected to the PSR's

calculation of an enhancement, pursuant to United States Sentencing Guidelines

Manual § 2K2.1(b)(4), that he possessed a stolen weapon. Brown also argues there

was insufficient evidence to support the prior convictions listed in the PSR.

The government concedes that the district did not make specific factual findings

as set forth in Rule 32(i) with regard to Brown's 2K2.1(b)(4) objection. See Fed. R.
1

Blakely v. Washington, 542 U.S. 296 (2004).

2

Apprendi v. New Jersey, 530 U.S. 466 (2000).

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Crim. P. 32(i)(3)(B) (district court must rule on the dispute or find that a ruling is

unnecessary, when defendant objects to portions of the PSR). But the government

argues, since Brown only made legal objections to the PSR (Brown objected by

arguing that the enhancement was barred by Blakely1

 and Apprendi2 because it was

based on judge-found facts), the district court was not required to make findings

pursuant Rule 32(i).

We agree that Brown's objection was primarily legal in nature because it was

based on Blakely and Apprendi, but it did have a factual component–that the district

court, instead of a jury, was allowed to find facts supporting the enhancement. Clearly

the legal component of his objection is without merit, United States v. Booker, 543

U.S. 220 (2005). Furthermore, a review of the sentencing transcript reveals that the

district court implicitly overruled Brown's objection by applying the 2K2.1(b)(4)

enhancement.

In United States v. Moss, 138 F.3d 742 (8th Cir. 1998), the defendant argued

the district court erred by not making an express credibility finding as required by

Rule 32, when Moss objected to factual portions of the PSR. We held that it was

evident from the sentence given that the district court credited one witness's testimony

over others. Id. at 745. We stated that, "[t]hough an express credibility finding would

have been preferable, in these circumstances the District Court's assessment of witness

credibility is evident. We therefore find no violation of Rule 32." Id. Similarly, an

express ruling rejecting Brown's meritless objection would have been preferable in

this case, but a review of the record indicates that the court implicitly considered, and

rejected, Brown's Blakely and Apprendi arguments. 
3

At the sentencing hearing, the probation officer disclosed that he relied upon

Exhibits 1, 2, and 3 when preparing the PSR. These exhibits contained copies of

judgments from Douglas County District Court, and computerized printouts of

Brown's arrest record with the Omaha Police Department. Although the officer

testified about these exhibits, the exhibits were never offered and received by the

district court. 

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Brown's second argument, that there was insufficient evidence to support the

prior convictions listed in the PSR, is without merit. Brown does not argue that any

of the convictions were constitutionally infirm. He simply argues that there was

insufficient evidence that they existed because the government did not produce

certified copies of the convictions.3

At the sentencing hearing, government counsel engaged the probation officer

in an extensive dialogue over whether those offenses actually existed. This query

included questioning the probation officer about the copies of judgments and the

computer criminal history printouts contained in the exhibits the officer had relied

upon in preparing the PSR. Defense counsel cross-examined the probation officer

regarding these issues. Accordingly, we find that there was sufficient evidence to

support the prior convictions listed in the PSR. United States v. Stobaugh, 420 F.3d

796, 802-03 (8th Cir. 2005), cert. denied, 126 S. Ct. 1093 (2006). And, by the end of

the hearing, Brown's counsel actually withdrew his objection to the sufficiency of the

evidence on this issue, thereby waiving appellate review absent plain error. United

States v. Ristine, 335 F.3d 692, 694 (8th Cir. 2003). Finding none, we affirm the

district court.

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