United States v. Neill ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 29 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4089
ERIC LONNIE NEILL, (D.C. No. 98-CR-273-K)
(D.Utah)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before HENRY, BRISCOE and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
Defendant Eric Lonnie Neill appeals from his convictions on six counts of bank
fraud and his sentence of fifteen months. His counsel has filed a brief pursuant to
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited
under the terms and conditions of 10th Cir. R. 36.3.
Anders v. California, 386 U.S. 738 (1967), raising three issues: (1) whether the
indictment should have been dismissed under the Interstate Agreement on Detainers; (2)
whether the court erred in finding Neill was an organizer, leader, manager, or supervisor
pursuant to U.S.S.G. § 3B1.1(c); and (3) whether the court erred in increasing Neill's
base offense level both for being an organizer or leader and for being involved in more
than minimal planning. We dismiss the appeal.
Neill was charged with thirty-four counts of bank fraud. As a result of a plea
agreement, he entered pleas of guilty to six counts, executing a Statement In Advance of
Plea of Guilty, which provided in part:
8. I know that there is no appellate review of any lawful sentence
imposed under a plea of guilty.
9. I know that, under 18 U.S.C. § 3742(a), I may appeal a sentence
imposed under this plea of guilty in any of the following circumstances:
(a) If the sentence was imposed in violation of the law.
(b) If the sentence was imposed as a result of an
incorrect application of the sentencing guidelines.
(c) If the sentence is greater than the sentence
specified in the applicable guideline range to the extent that
the sentence includes a greater fine or term of imprisonment,
probation, or supervised released than the maximum
established in the guideline range, or includes a more limiting
condition of probation or supervised release under 18 U.S.C.
§ 3563(b)(6) or 18 U.S.C. § 3563(b)(11) than the maximum
established in the guideline range.
(d) If the sentence was imposed for an offense for
which there is no sentencing guideline, and the sentence is
plainly unreasonable.
10. As noted above, I understand that a sentencing guideline range
for my case will be determined by the Court in accordance with the
Sentencing Reform Act of 1984. . . . Acknowledging all this, I knowingly
and voluntarily waive my right to appeal any sentence imposed by the
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Court and the manner in which the sentence is determined, so long as my
sentence is within the statutory maximums . . . I also waive any right to
challenge or appeal the conviction in this case based on any claim of
violation of the Speedy Trial Act or any claim of violation of the provisions
of the Interstate Agreement on Detainers. I also waive any right to
challenge the sentence or the manner in which the sentence is determined
in any collateral attack, including, but not limited to, a motion brought
under 28 U.S.C. § 2255.
Statement at 3-4. At the plea hearing, the following exchange occurred:
THE COURT: Let's see. You waive the right to challenge or
appeal the conviction in this case based on any claim of violation of the
Speedy Trial Act or any claim of violation of the provision of the Interstate
Agreement on Detainers. “I also waive any right to challenge the sentence
or the manner in which the sentence is determined and any collateral
attack.” Do you understand those waivers?
NEILL: Yes.
Transcript at 7-8. The presentence report indicated that based on Neill's total offense
level of 13 and a criminal history category of II, the guidelines range of imprisonment
was fifteen to twenty-one months. U.S.S.G. § 5A. The court imposed a sentence of
fifteen months.
We enforce the terms of a lawful plea agreement. See United States v. Hernandez,
134 F.3d 1435, 1437 (10th Cir. 1998). If a defendant knowingly and voluntarily waives
his statutory right to appeal, a sentence is generally enforceable. See id.We have examined the sentencing transcript, the plea statement, and the entire
record on appeal and conclude the plea agreement was entered knowingly and voluntarily
by the defendant in exchange for promises favorable to him. The sentence imposed was
not an illegal sentence and was not greater than the sentence specified in the applicable
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guidelines range.
Neill waived his right to bring this appeal. Counsel's motion to withdraw as
counsel for Neill is GRANTED. The appeal is DISMISSED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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