United States v. Elliott M. Sumlin , 190 F. App'x 527 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2882
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Elliott M. Sumlin, *
* [UNPUBLISHED]
Appellant. *
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Submitted: August 1, 2006
Filed: August 3, 2006
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Before SMITH, MAGILL, and BENTON, Circuit Judges.
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PER CURIAM.
Elliott M. Sumlin appeals the sentence the district court1 imposed after he
pleaded guilty to conspiring to distribute more than 50 grams of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. His counsel has filed a brief
under Anders v. California, 386 U.S. 738 (1967), arguing that the district court abused
its discretion by imposing a 135-month sentence and plainly erred under United States
v. Booker, 543 U.S. 220 (2005), by applying the Guidelines as mandatory.
1
The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
We enforce the broad appeal waiver included in Sumlin’s plea agreement: the
plea colloquy reflects that Sumlin understood and voluntarily accepted the terms of
the plea agreement, including the waiver; this appeal falls within the scope of the
waiver; and no injustice would result. United States v. Andis, 333 F.3d 886, 889-92
(8th Cir. 2003) (en banc) (court should enforce appeal waiver and dismiss appeal
where it falls within scope of waiver, both plea agreement and waiver were entered
into knowingly and voluntarily, and no miscarriage of justice would result; one
important way district court can ensure plea agreement and appeal waiver are knowing
and voluntary is to properly question defendant about decision to enter agreement and
to waive right to appeal). The waiver also covered any issues under Booker. See
United States v. Fogg, 409 F.3d 1022, 1025 (8th Cir. 2005) (unless expressly reserved,
right to appellate relief under Booker is among rights waived by valid appeal waiver,
even if parties did not anticipate Blakely v. Washington, 542 U.S. 296 (2004), or
Booker).
Accordingly, we dismiss the appeal.
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