United States v. Deandre Fugate , 158 F. App'x 748 ( 2005 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 04-3819
    ___________
    United States of America,               *
    *
    Appellee,                  *
    * Appeal from the United States
    v.                                * District Court for the
    * Western District of Missouri
    Deandre Fugate,                         *
    * [UNPUBLISHED]
    Appellant.                 *
    ___________
    Submitted: November 18, 2005
    Filed: December 16, 2005
    ___________
    Before BYE, McMILLIAN, and RILEY, Circuit Judges.
    ___________
    PER CURIAM.
    In this direct criminal appeal, Deandre Fugate appeals from the final judgment
    entered in the District Court1 for the Western District of Missouri after he pleaded
    guilty to possession with intent to distribute 100 kilograms or more of marijuana, in
    violation of 
    21 U.S.C. § 841
    (a)(1) and (b)(1)(B) and 
    18 U.S.C. § 2
    . After granting the
    government’s motion for a substantial-assistance departure, the district court
    sentenced Fugate to 46 months imprisonment and 4 years supervised release. Counsel
    has moved to withdraw on appeal and has filed a brief pursuant to Anders v.
    1
    The Honorable Nanette K. Laughrey, United States District Judge for the
    Western District of Missouri.
    California, 
    386 U.S. 738
     (1967), arguing that an appeal waiver contained in the plea
    agreement is not binding because the district court did not ensure that Fugate
    understood the waiver’s terms before accepting his plea, and that the district court
    erred in refusing to grant a greater departure. In a supplemental brief, counsel argues
    the district court plainly erred under United States v. Booker, 
    125 S. Ct. 738
     (2005),
    by treating the Guidelines as mandatory, and the sentence imposed was unreasonable.
    For the reasons discussed below, we affirm the judgment of the district court.
    Because the district court did not engage in the required colloquy at the plea
    hearing, we do not enforce the appeal waiver. See Fed. R. Crim. P. 11(b)(1)(N)
    (before accepting guilty plea, court must inform defendant of, and determine he
    understands, plea-agreement terms waiving appeal rights); United States v. Rojas-
    Coria, 
    401 F.3d 871
    , 872 n.2 (8th Cir. 2005) (not enforcing appeal waiver where plea-
    and sentencing-hearing transcripts indicated court did not engage in Rule 11(b)(1)(N)
    colloquy). We cannot, however, review the extent of the substantial-assistance
    departure, see United States v. Pepper, 
    412 F.3d 995
    , 997 (8th Cir. 2005), or the
    district court’s decision not to depart under U.S.S.G. § 4A1.3 given the court’s
    awareness of its authority to depart, see United States v. Mohr, 
    407 F.3d 898
    , 902 (8th
    Cir.) (per curiam) (denial of downward departure based on over-representative
    criminal history is unreviewable where district court was aware of its authority to
    depart), cert. denied, (U.S. Nov. 14, 2005) (No. 05-7020).
    We also find no plain error in the district court’s mandatory application of the
    Guidelines, because we conclude Fugate cannot show, based on the record as a whole,
    that he would have received a more favorable sentence under an advisory Guidelines
    regime. See United States v. Pirani, 
    406 F.3d 543
    , 552-53 (8th Cir.) (en banc) (plain-
    error test), cert. denied, 
    126 S. Ct. 266
     (2005). Although the district court expressed
    dissatisfaction with “the system,” the court stated that it could not in good conscience
    give Fugate a sentence less than 46 months, which was what a less culpable
    codefendant had received. See United States v. Parsons, 
    408 F.3d 519
    , 522 (8th Cir.
    -2-
    2005) (per curiam) (although district court stated sentence called for by Guidelines
    “might be slightly high,” court also stated that sentence was “appropriate in this case”;
    appeals court found that statements in their entirety were “equivocal at best” and that
    defendant thus had not satisfied third factor of plain-error test).
    After reviewing the record independently for any nonfrivolous issues, see
    Penson v. Ohio, 
    488 U.S. 75
     (1988), we have found none. Accordingly, we grant
    counsel’s motion to withdraw, and we affirm.
    ______________________________
    -3-
    

Document Info

Docket Number: 04-3819

Citation Numbers: 158 F. App'x 748

Judges: Bye, McMILLIAN, Per Curiam, Riley

Filed Date: 12/16/2005

Precedential Status: Non-Precedential

Modified Date: 11/5/2024