United States v. Dustin Wertz , 576 F. App'x 641 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-3557
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Dustin Nathaniel Wertz
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - St. Joseph
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Submitted: July 22, 2014
Filed: August 19, 2014
[Unpublished]
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Before WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Dustin Wertz appeals the 135-month prison sentence the district court1 imposed
after he pleaded guilty to a drug offense. On appeal, his counsel has moved to
1
The Honorable Greg Kays, Chief Judge, United States District Court for the
Western District of Missouri.
withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967),
arguing that the sentence is excessive and unreasonable. In a letter to this court,
Wertz requests new counsel.
The written plea agreement in this case contains an appeal waiver, which we
will enforce. See United States v. Azure, 571 F.3d 769, 772 (8th Cir. 2009) (de novo
review of enforceability of appeal waiver). Our review of the record convinces us
that Wertz entered into the plea agreement and the appeal waiver knowingly and
voluntarily. This appeal also falls within the appeal waiver’s scope, and we conclude
that no miscarriage of justice would result from enforcing the waiver. See United
States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (court should enforce
appeal waiver where it falls within scope of waiver, plea agreement and waiver were
entered into knowingly and voluntarily, and no miscarriage of justice would result).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80
(1988), we find no non-frivolous issues outside the scope of the waiver. Accordingly,
we dismiss the appeal.
As for counsel’s motion to withdraw, we conclude that allowing counsel to
withdraw at this time would not be consistent with the Eighth Circuit’s 1994
Amendment to Part V of the Plan to Implement the Criminal Justice Act of 1964. We
therefore deny counsel’s motion to withdraw as premature, without prejudice to
counsel refiling the motion upon fulfilling the duties set forth in the Amendment.
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