United States v. Herbert Zeno

MEMORANDUM

Herbert D. Zeno appeals from the district court’s judgment and challenges his jury-trial conviction and 120-month sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922 (g)(1) and 924(a)(2). Pursuant to Anders v. California, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 (1967), Zeno’s counsel has filed a brief stating that there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided Zeno the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.

Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80 , 109 S.Ct. 346 , 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal with respect to Zeno’s conviction. We, therefore, affirm the conviction.

With respect to Zeno’s sentence, we vacate and remand. Zeno’s base offense level was determined to be 20 under U.S.S.G. § 2K2.1(a)(4)(A), on the basis of the probation officer’s conclusion that Zeno had a prior conviction for a crime of violence. However, neither the probation officer nor the district court identified which of Zeno’s prior…