United States v. Khoi Van Ha , 355 F. App'x 976 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3792
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Northern
v. * District of Iowa.
*
Khoi Van Ha, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 7, 2009
Filed: December 11, 2009
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Before BYE, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
Pursuant to a written plea agreement, Khoi Van Ha pleaded guilty to conspiring
to manufacture, possessing with intent to distribute, and distributing 1,000 or more
marijuana plants within 1,000 feet of a protected location, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A); 846; and 860 (1999). After granting the government's
substantial-assistance motions under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), the
District Court1 sentenced Ha to 108 months in prison, which was 12 months below the
statutory minimum, and 10 years of supervised release. Ha’s counsel has moved to
1
The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967), in
which he argues that Ha's sentence is unreasonable. In his pro se supplemental brief,
Ha argues that he was actually innocent of the drug quantity assessed against him; he
did not understand that the charge to which he pleaded guilty carried a 10-year
mandatory minimum prison sentence, and would not have pleaded guilty had he
understood; the Court should have reduced his sentence by 50%, and should have
given him safety-valve relief; and enforcing the appeal waiver would constitute a
miscarriage of justice because his plea was not knowing and voluntary, he was
sentenced under the incorrect statutory provision, and his sentence does not comply
with "statutory mandates."
We will enforce an appeal waiver in a plea agreement only when the appeal
falls within the scope of the waiver, both the waiver and plea agreement were entered
into knowingly and voluntarily, and enforcement of the appeal waiver would not
result in a miscarriage of justice. See United States v. Andis, 333 F.3d 886, 889–92
(8th Cir.) (en banc), cert. denied, 540 U.S. 997 (2003). Here, through an interpreter,
the District Court thoroughly questioned Ha about his understanding of the plea
agreement and the voluntariness and consequences of his plea. Ha confirmed that
counsel, aided by an interpreter, read the agreement to him, paragraph by paragraph,
and that he had initialed a paragraph only when he understood and agreed to it, and
he does not suggest on appeal that he did not know about or understand the waiver at
the time he signed the plea agreement or entered his plea. See United States v.
Cheney, 571 F.3d 764, 766–67 (8th Cir. 2009).
Further, the sentencing issues raised in this appeal fall within the scope of the
appeal waiver. Accordingly, we will enforce the waiver and dismiss the appeal. See
Andis, 333 F.3d at 889–92 (holding that court should dismiss appeal where it falls
within scope of valid waiver and no miscarriage of justice would result); United States
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v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam) (enforcing
appeal waiver in Anders case).2
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we have found no nonfrivolous issues that are not encompassed by the appeal
waiver. Accordingly, we grant counsel’s motion to withdraw, and we dismiss the
appeal based on the appeal waiver.
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2
Even if Ha's appeal waiver is unenforceable, we see no reason to invalidate the
remainder of the plea agreement, which forecloses his sentencing arguments on
appeal. See United States v. Mickelson, 433 F.3d 1050, 1055–56 (8th Cir. 2006)
(holding that a defendant who explicitly and voluntarily exposes himself to specific
sentence may not challenge that punishment on appeal).
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