United States v. Anthony Ray Escobar , 84 F. App'x 716 ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1646
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Minnesota.
Anthony Ray Escobar, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 22, 2003
Filed: December 30, 2003
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Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Pursuant to a written plea agreement, Anthony Ray Escobar pleaded guilty to
conspiring to distribute and to possess with intent to distribute in excess of 500 grams
of a mixture or substance containing a detectable amount of methamphetamine, in
violation of 21 U.S.C. § 846. At sentencing, the district court1 granted Mr. Escobar’s
motion for a downward departure under U.S.S.G. § 4A1.3, and sentenced him to
121 months imprisonment and 5 years supervised release. On appeal, Mr. Escobar’s
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S.
738 (1967), arguing that the district court should have departed further, that
Mr. Escobar should have received a minor-role reduction, and that the district court
erred in not inquiring whether Mr. Escobar wished to withdraw from his plea
agreement.
In the plea agreement, Mr. Escobar waived all rights conferred by 18 U.S.C.
§ 3742 to appeal his sentence, unless the court sentenced him above an offense level
of 29. The district court did not sentence him above an offense level of 29, and after
carefully reviewing the record, we conclude Mr. Escobar’s challenge to the extent of
the departure and to the lack of a minor-role reduction are within the scope of the
appeal waiver. We also conclude that Mr. Escobar entered into the plea agreement
knowingly and voluntarily, and that no miscarriage of justice would result from
enforcing the waiver. See United States v. Andis, 333 F.3d 886, 889-91 (8th Cir.) (en
banc), cert. denied, No. 03-6608, 2003 WL 22258164 (Nov. 3, 2003). We therefore
dismiss this appeal as it relates to the forgoing sentencing arguments.
We also conclude that the district court was not required to ask Mr. Escobar
whether he wished to withdraw his plea, and thus it did not plainly err by failing to
do so. See United States v. Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (en banc).
Finally, we have reviewed the record independently pursuant to Penson v.
Ohio, 488 U.S. 75 (1988), for any nonfrivolous issue not waived by the plea
agreement, and we find none. Accordingly, we enforce the appeal waiver and dismiss
this appeal as to the two sentencing issues raised, and we affirm as to the remaining
issue. We also grant counsel’s motion to withdraw.
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