                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0283n.06

                                           No. 11-1958
                                                                                         FILED
                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT                             Mar 13, 2012
                                                                             LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE WESTERN DISTRICT OF
KEVIN GERALD BOGUTH,                                )       MICHIGAN
                                                    )
       Defendant-Appellant.                         )




       Before: KEITH, MARTIN, and GIBBONS, Circuit Judges.


       PER CURIAM. Kevin Gerald Boguth appeals the district court’s judgment in his criminal

case. Boguth’s counsel has filed a motion to withdraw his representation in accordance with Anders

v. California, 386 U.S. 738 (1967).

       Pursuant to a plea agreement, Boguth pled guilty to misapplication of bank funds in violation

of 18 U.S.C. § 656. The district court determined that, based on Boguth’s total offense level of

twenty and his criminal history category of II, his advisory sentencing guidelines range was thirty-

seven to forty-six months of imprisonment. The court sentenced Boguth to forty months of

imprisonment.

       Boguth’s appellate counsel has moved to withdraw, stating that he has examined the record

and found no non-frivolous grounds to raise on appeal. Counsel identified several potential issues

that may support an appeal: 1) Boguth’s guilty plea was invalid; 2) the district court improperly

assessed two criminal history points when determining Boguth’s criminal history category; 3) the

sentence was unreasonable; and 4) the district court erred by failing to grant a downward departure

under USSG § 4A1.3(b)(1), because Boguth’s criminal history category substantially overstated the
                                            No. 11-1958
                                                -2-

seriousness of his criminal history. Boguth was notified of his right to respond to counsel’s motion,

but has not done so. Further, the deadline for Boguth to file a response has now passed. Because

counsel has filed an acceptable Anders brief and our independent review of the record reveals no

arguable issues, we grant the motion to withdraw and affirm the district court’s judgment. See

Anders, 386 U.S. at 744.

       Boguth entered a valid guilty plea. We review de novo the validity of a guilty plea. United

States v. Dixon, 479 F.3d 431, 434 (6th Cir. 2007). A guilty plea is valid if it is entered knowingly,

voluntarily, and intelligently. Bousley v. United States, 523 U.S. 614, 618 (1998). In accordance

with Federal Rule of Criminal Procedure 11, the district court “must verify that the defendant’s plea

is voluntary and that the defendant understands his or her applicable constitutional rights, the nature

of the crime charged, the consequences of the guilty plea, and the factual basis for concluding that

the defendant committed the crime charged.” Dixon, 479 F.3d at 434 (internal quotation marks

omitted). The record indicates that the district court complied with the requirements of Rule 11 and

properly determined that Boguth knowingly and voluntarily entered his guilty plea.

       Our independent review of the record reveals no non-frivolous basis on which to challenge

Boguth’s sentence, which is both procedurally and substantively reasonable. See Gall v. United

States, 552 U.S. 38, 51 (2007). The district court properly assessed two criminal history points under

USSG § 4A1.1(b) for Boguth’s prior convictions for writing bad checks because these offenses are

considered relevant conduct for purposes of Boguth’s current offense of misapplication of bank
funds. See USSG §§ 4A1.1(b) & 4A1.2 cmt. n.1; United States v. Phillips, 516 F.3d 479, 483 (6th

Cir. 2008). The district court properly calculated the sentencing guidelines range, recognized the

advisory nature of the guidelines, gave proper consideration to the relevant 18 U.S.C. § 3553(a)

factors, and gave a thorough explanation of its chosen sentence. See Gall, 552 U.S. at 51. Finally,

we will not review a district court’s failure to grant a downward departure under § 4A1.3(b)(1)

where, as here, the court recognizes its discretion to depart, but declines to do so. See United States

v. Johnson, 553 F.3d 990, 998-99 (6th Cir. 2009).
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Therefore, we grant counsel’s motion to withdraw and affirm the district court’s judgment.
