United States Court of Appeals

For the Eighth Circuit

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No. 14-3277

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Brandon Lovell

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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 Submitted: December 17, 2015

 Filed: January 29, 2016

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Before MURPHY, BENTON, and KELLY, Circuit Judges.

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MURPHY, Circuit Judge.

Brandon Lovell pled guilty to possession of a stolen firearm, possession of

methamphetamine with intent to distribute, and carrying a firearm during and in

relation to a drug trafficking crime. The district court sentenced Lovell to 180

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The Honorable Susan Webber Wright, United States District Judge for the

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Eastern District of Arkansas.
months imprisonment asforeseen in his plea agreement. Lovell appeals his sentence,

and we affirm. 

I. 

On December 5, 2012 Lovell impersonated a police officer at the residence of

a methamphetamine dealer. Lovell pointed a rifle at the female dealer and told her

he was a police officer. When he demanded money and drugs, she complied. Several

months later, on January 23, 2013, Lovell returned to the dealer's home, stole drugs

and money, hit her in the head with a gun, and then kidnapped her in her own

automobile. The woman escaped when Lovell and his accomplice stopped at a

different residence. Thereafter, on February 7, 2013, Lovell burglarized another

individual's home where he stole at least one firearm. 

Lovell was arrested on February 8, 2013. On the same day, law enforcement

executed a search warrant at Lovell's residence in Culpepper, Arkansas where he

lived with his grandfather. In the home officers recovered firearms, silencers made

from oil cans, exploded and unexploded pipe bombs, a bullet proof vest, a green

jumpsuit with police patches affixed to it, and a blue light similar to the emergency

light used by law enforcement. Lovell and his grandfather both admitted that Lovell

had been detonating pipe bombs in the yard of the house. 

The government charged Lovell with several crimes related to the armed

burglaries he had committed. On March 27, 2014 the parties entered into a written

plea agreement in which Lovell agreed to plead guilty to possessing a stolen firearm,

possessing methamphetamine with intent to distribute, and carrying a firearm during

and in relation to a drug trafficking crime. The remaining counts were dismissed. In

the agreement the parties recommended that the district court sentence Lovell to 180

months imprisonment under Federal Rule of Criminal Procedure 11(c)(1)(C).

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The court held an evidentiary hearing before sentencing Lovell. The court

heard testimony from his probation officer and a Bureau of Alcohol, Tobacco, and

Firearms special agent who was familiar with Lovell's criminal activity. After

receiving testimony, the court concluded that the guideline range was 60 to 71 months

for possession of a firearm and possession of methamphetamine with intent to

distribute, plus an additional 60 month minimum for carrying a firearm during and in

relation to a drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A)(i). The district

court noted that Lovell's criminal history and guideline range calculation "actually

understate[d] the seriousness" of his offenses. The court then sentenced Lovell to a

total of 180 months imprisonment, 120 months for possessing a firearm and for

possessing methamphetamine with the intent to distribute, with a consecutive 60

months for carrying a firearm during and in relation to a drug trafficking crime. 

Lovell appeals his sentence.

II. 

Lovell claims that the court's sentence was substantively unreasonable. We

have stated, however, that "[a] defendant who explicitly and voluntarily exposes

himself to a specific sentence [in a plea agreement] may not challenge that

punishment on appeal." United States v. Nguyen, 46 F.3d 781, 783 (8th Cir. 1995). 

Here, the record shows that Lovell stipulated to a 180 month sentence in his plea

agreement. Although the guideline range for the three crimes to which Lovell pled

guilty was less than 180 months, Lovell nonetheless benefited from his plea

agreement because in it the government agreed to dismiss the remaining counts of the

indictment. Lovell accepted the benefit of the plea agreement, explicitly and

voluntarily exposing himself to a sentence of 180 months. See United States v. Cook,

447 F.3d 1127, 1128 (8th Cir. 2006). 

Moreover, Lovell's sentence is not unreasonable. Absent reversible procedural

error, a district court abuses its discretion in sentencing if it "(1) fails to consider a

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relevant factor that should have received significant weight; (2) gives significant

weight to an improper or irrelevant factor; or (3) considers only the appropriate

factors but in weighing those factors commits a clear error of judgment." United

States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (internal quotation

marks omitted). The record shows that the district court imposed Lovell's sentence

after considering all of the 18 U.S.C. § 3553(a) factors. It appears that one of the

most significant factors in the court's sentencing decision was the "nature and

circumstances" of Lovell's offenses. The court described Lovell's conduct as "really

terrifying" and "really serious." It was within the court's discretion to give "greater

weight to the nature and circumstances of the offense than to other § 3553(a) factors."

United States v. Hummingbird, 743 F.3d 636, 638 (8th Cir. 2014). Nothing in the

record demonstrates that the district court failed to consider a relevant factor, gave

improper weight to an irrelevant factor, or committed a clear error of judgment in

weighing the appropriate factors. We conclude that Lovell's sentence was not

unreasonable. 

We deny Lovell's motion requesting new counsel and raising new legal issues. 

He claims ineffective assistance of counsel and argues that his sentence violates the

Double Jeopardy Clause. Lovell did not raise either issue below, and neither

ineffective assistance nor double jeopardy is evident in the record before us. Rather

than attempting to raise an ineffective assistance claim on direct appeal, Lovell may

properly initiate it in a 28 U.S.C. § 2255 motion in the district court. See United

States v. Lee, 374 F.3d 637, 654 (8th Cir. 2004). 

For these reasons we affirm Lovell's sentence and deny his pending motion. 

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