United States v. Robert Rutan , 490 F. App'x 840 ( 2012 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-1550/12-1551/12-1552
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Robert Michael Rutan
lllllllllllllllllllll Defendant - Appellant
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Appeals from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: October 30, 2012
Filed: November 6, 2012
[Unpublished]
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Before BYE, GRUENDER, and BENTON, Circuit Judges.
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PER CURIAM.
Robert Rutan pleaded guilty to bank robbery, in violation of 18 U.S.C.
§ 2113(a). At the time of the bank robbery, Rutan was serving two terms of
supervised release. The district court1 sentenced him to 240 months in prison for the
1
The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa.
bank-robbery offense, revoked his two supervised-release terms, and sentenced him
to 24 months in prison for each revocation, with all three prison terms to be served
consecutively. On appeal, Rutan’s counsel has moved to withdraw, and has filed a
brief under Anders v. California, 386 U.S. 738 (1967), arguing that the court erred in
ordering the prison terms to be served consecutively. Rutan has filed a pro se
supplemental brief, challenging the validity of his guilty plea.
Upon careful review of the record--which includes a written plea agreement
containing an appeal waiver--we conclude that the appeal waiver bars our review of
Rutan’s pro se challenge to his guilty plea, but not counsel’s argument that the district
court erred in ordering that the three prison terms be served consecutively. See
United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (setting forth
standard for enforcing appeal waivers). We further conclude that it was not
unreasonable for the court to impose consecutive prison terms. See U.S.S.G.§ 7B1.3,
cmt. n.4 (Sentencing Commission recommends any sentence of imprisonment for
criminal offense that is imposed after revocation of supervised release run
consecutively to any term of imprisonment imposed upon revocation); see also
United States v. Lee, 545 F.3d 678, 680 (8th Cir. 2008) (per curiam) (with limited
exception, district court’s decision to impose consecutive or concurrent sentence
reviewed only for reasonableness). Finally, having independently reviewed the
record under Penson v. Ohio, 488 U. S. 75 (1988), we find no nonfrivolous issue for
appeal.
Accordingly, we enforce the appeal waiver with respect to Rutan’s challenge
to his guilty plea, we affirm the sentences imposed, and we grant counsel permission
to withdraw.
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