                          United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-2950
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Lester D. Erby,                         *
                                        *    [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: May 16, 2006
                                 Filed: May 25, 2006 (corrected May 30, 2006)
                                 ___________

Before MURPHY, BEAM, and COLLOTON, Circuit Judges.
                           ___________

PER CURIAM.

       Lester D. Erby appeals the sentence imposed by the district court1 after he
pleaded guilty to possessing a firearm transported in interstate commerce after he had
been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The
district court, declining to follow the offense-level stipulation in Erby’s plea
agreement, sentenced him to 40 months imprisonment and 3 years supervised release.
Erby’s counsel now moves to withdraw and has filed a brief under Anders v.



      1
      The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri.
California, 386 U.S. 738 (1967), arguing that the district court erred in declining to
follow the plea agreement, and that the 40-month sentence was unreasonable.

       In Erby’s written plea agreement, the parties stipulated to a base offense level
of 14, but agreed that the estimate did not bind the court and that the Guidelines range
was only advisory. The district court, however, determined a base offense level of 20
pursuant to U.S.S.G. § 2K2.1(a)(4) (committing instant offense after one felony
conviction for crime of violence), because Erby had a 1999 Missouri conviction for
tampering with a witness.

       We find that the district court properly assessed a base offense level of 20.
Because the plea agreement was not binding on the court, the court was required to
independently evaluate the evidence when determining the sentence. See United
States v. DeWitt, 366 F.3d 667, 671 (8th Cir. 2004). Further, the district court
properly found Erby’s prior conviction qualified as a crime of violence. According
to the PSR (which he did not dispute) the underlying information recited that he had
threatened to harm the victim’s grandparents See U.S.S.G. § 2K2.1 n.1 (“crime of
violence” has same meaning as in U.S.S.G. § 4B1.2); U.S.S.G. § 4B1.2(a)(1) (offense
is crime of violence if it has as an element the use, attempted use, or threatened use
of physical force against the person of another); Mo. Rev. Stat. § 575.270.1(1) (2000
& Supp. 2005) (person tampers with witness if he induces witness by threatening or
causing harm to any person); Fed. R. Crim. P. 32(i)(3)(A) (district court may accept
any undisputed portion of PSR as finding of fact); United States v. McCall, 439 F.3d
967, 974 (8th Cir. 2006) (en banc) (when statute punishes both violent and non-violent
conduct, courts may look to charging document; unobjected-to PSR description of
charging document may be relied on).

      We also find that the sentence is reasonable. See United States v. Booker, 543
U.S. 220, 258-62 (2005) (district courts must consult Guidelines and take them into
account when sentencing along with other § 3553(a) factors; § 3553(a) factors guide

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inquiry as appellate courts review sentences to determine whether they are
reasonable); United States v. Lincoln, 413 F.3d 716, 717-18 (8th Cir.) (sentence
within Guidelines range is presumptively reasonable, and defendant must rebut such
presumption), cert. denied, 126 S. Ct. 840 (2005).

      Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we have found no nonfrivolous issues suitable for appeal. Accordingly,
we affirm, and we grant counsel’s motion to withdraw.
                      ______________________________




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