                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 09-3021
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa.
Martin Larry Wilson,                     *
                                         *     [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: March 10, 2010
                                 Filed: March 15, 2010
                                  ___________

Before BYE, RILEY, and SHEPHERD, Circuit Judges.
                            ___________

PER CURIAM.

       In this direct criminal appeal after a remand, Martin Wilson, who pled guilty
to being a felon in possession of a firearm, challenges the sentence the district court1
imposed upon resentencing. His counsel has moved to withdraw, and has filed a brief
under Anders v. California, 386 U.S. 738 (1967), challenging the district court’s
decision to depart upward by raising Wilson’s criminal history category under the
Sentencing Guidelines from III to IV. Specifically, counsel argues that the court
abused its discretion because it relied on unscored convictions that were largely

      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
misdemeanors and reflected Wilson’s alcoholism rather than incorrigibility. Wilson
argues in a pro se supplemental brief that, because he possessed the firearm as a
keepsake, he should have been assigned a lower base offense level under the
Guidelines.

       We hold that the district court did not abuse its discretion in departing upward
to a Category IV criminal history, because the court explained that it was basing the
upward departure on the seriousness of Wilson’s unscored convictions, his repeated
assaults on his wife, and the likelihood of violent recidivism. See U.S.S.G.
§ 4A1.3(a)(1); United States v. Vasquez, 552 F.3d 734, 738-39 (8th Cir. 2009)
(standard of review; upward departures under § 4A1.3(a) are applicable if reliable
information indicates that criminal history category substantially under-represents
seriousness of criminal history or likelihood that defendant will recidivate; court may
take into account any evidence of obvious incorrigibility and conclude that leniency
has not been effective). We further hold that Wilson’s pro se argument is foreclosed
by his plea agreement, because Wilson stipulated in the plea agreement that he did not
possess the firearm for lawful sporting purposes or for collection. See United States
v. Paton, 535 F.3d 829, 834-35 (8th Cir. 2008) (de novo standard of review; defendant
foreclosed from making arguments precluded by terms of plea agreement).

      Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues. Accordingly, we affirm the district court’s
judgment and we grant counsel leave to withdraw.
                       ______________________________




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