United States v. Deron Johnson ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3403
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Deron Decarlos Johnson, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: October 28, 2005
Filed: November 3, 2005
___________
Before ARNOLD, FAGG, and SMITH, Circuit Judges.
___________
PER CURIAM.
Deron Johnson appeals the sentence the district court1 imposed after he pleaded
guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). His counsel has moved to withdraw and filed a brief under Anders v.
California, 386 U.S. 738 (1967).
Johnson executed a written plea agreement, in which he agreed to waive his
right to appeal or otherwise challenge the constitutionality or legality of the
1
The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri.
Sentencing Guidelines, and expressly waived the right to appeal his sentence directly
or collaterally, on any ground except for an upward departure, a sentence in excess
of the statutory maximum, or an illegal sentence.
We enforce this appeal waiver: the district court conducted a proper Federal
Rule of Criminal Procedure 11 colloquy; Johnson testified under oath that his plea
was voluntary and knowing, and the district court discussed the appeal waiver with
him at the plea hearing; this appeal falls within the scope of the waiver; and no
injustice would result, as Johnson’s sentence is consistent with the plea agreement.
See United States v. Andis, 333 F.3d 886, 889-91 (8th Cir.) (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), cert.
denied, 540 U.S. 997 (2003). The waiver also covered any issues under United States
v. Booker, 125 S. Ct. 738 (2005). See United States v. Reeves, 410 F.3d 1031,
1034-35 (8th Cir. 2005) (right to appeal under Booker is among rights waived by
broad appeal waiver, even if defendant did not anticipate Booker ruling), cert. denied,
(U.S. Oct. 11, 2005) (No. 05-6322).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we have found no nonfrivolous issues. Accordingly, we dismiss the
appeal and grant counsel’s motion to withdraw.
______________________________
-2-