United States v. Patrick Wigley , 690 F. App'x 444 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-1555
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Patrick Wigley,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 14, 2016
Filed: June 5, 2017
[Unpublished]
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Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
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PER CURIAM.
Patrick Wigley and an associate robbed a credit union in Kearney, Nebraska.
Wigley pleaded guilty to bank robbery pursuant to a plea agreement. The district
court1 adopted the recommendation of a magistrate judge to accept the plea, and the
court then sentenced Wigley to 212 months’ imprisonment. Wigley appeals the
sentence, arguing that the court should have departed or varied downward from the
advisory guideline range.
The government contends that Wigley waived his right to appeal the sentence,
and we agree. The plea agreement stated that Wigley “knowingly and expressly
waives any and all rights to appeal [his] conviction and sentence, . . . including
review pursuant to 18 U.S.C. § 3742 of any sentence imposed,” except for a claim of
ineffective assistance of counsel. At Wigley’s change-of-plea hearing, the magistrate
judge reviewed the appeal waiver, and Wigley acknowledged that he was giving up
his right to appeal the forthcoming sentence. Wigley also testified that his counsel
explained the plea agreement to him and that he was not under the influence of drugs
or alcohol when he signed it. He further averred that he had not been threatened to
plead guilty and had not received any promises in exchange for his plea.
We will generally enforce a defendant’s waiver if “the appeal falls within the
scope of the waiver” and “both the waiver and plea agreement were entered into
knowingly and voluntarily.” United States v. Andis, 333 F.3d 886, 889-90 (8th Cir.
2003) (en banc). The record described above shows that the government has
established these prerequisites. Our cases say that we will not enforce a waiver that
would result in a “miscarriage of justice,” such as an “illegal sentence.” Andis, 333
F.3d at 891-92. But the illegal sentence exception to an appeal waiver is “extremely
narrow” and does not apply to a sentence like Wigley’s that is within the statutory
range. Id. at 892. We therefore conclude that Wigley waived his right to bring this
appeal, and the appeal is dismissed.
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1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska, adopting the report and recommendation of the Honorable Cheryl R.
Zwart, United States Magistrate Judge for the District of Nebraska.
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