United States v. M. Ramirez-Beltran , 223 F. App'x 536 ( 2007 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 06-1314
    ___________
    United States of America,                *
    *
    Appellee,                   *
    * Appeal from the United States
    v.                                 * District Court for the
    * District of Nebraska.
    Mario Ramirez-Beltran,                   *
    * [UNPUBLISHED]
    Appellant.                  *
    ___________
    Submitted: May 3, 2007
    Filed: May 8, 2007
    ___________
    Before SMITH, GRUENDER, and SHEPHERD, Circuit Judges.
    ___________
    PER CURIAM.
    Mario Ramirez-Beltran (Beltran) appeals the 120-month sentence imposed by
    the district court1 upon his guilty plea, entered pursuant to a written plea agreement,
    to one count of conspiracy to distribute and possess with intent to distribute
    methamphetamine, in violation of 
    21 U.S.C. §§ 841
    (a)(1), (b)(1) and 846. His counsel
    has filed a brief under Anders v. California, 
    386 U.S. 738
     (1967), arguing that (1)
    Beltran’s 120-month sentence is unreasonable under 
    18 U.S.C. § 3553
    (a), and (2) the
    1
    The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
    for the District of Nebraska.
    district court abused its discretion in granting the government’s motion for a
    continuance of the sentencing hearing. Counsel also moves to withdraw.
    We hold that Beltran waived his right to challenge the reasonableness of his
    sentence on appeal because the guilty plea transcript shows that he knowingly and
    voluntarily entered into his plea agreement and an appeal waiver contained therein,
    because the challenge to his sentence falls within the scope of the appeal waiver, and
    because enforcement of the waiver does not result in a miscarriage of justice. See
    United States v. Andis, 
    333 F.3d 886
    , 889-90 (8th Cir. 2003) (en banc) (defendant can
    enter into plea agreement that waives appellate rights; such waivers are enforceable
    if appeal falls within scope of waiver, both waiver and plea agreement were entered
    into knowingly and voluntarily, and waiver does not result in miscarriage of justice).
    Liberally construing Beltran’s challenge to the sentencing-hearing continuance
    as an issue outside the scope of the appeal waiver, we hold that the court did not abuse
    its discretion in granting the continuance. Cf. United States v. Vesey, 
    330 F.3d 1070
    ,
    1071-72 (8th Cir. 2003) (district courts are afforded broad discretion when ruling on
    requests for continuances, which should be granted only when requesting party has
    shown compelling reason; in reviewing denial of motion to continue trial,
    considerations include whether counsel had sufficient time to prepare, whether
    counsel was prepared, and whether denial of continuance resulted in prejudice).
    Finally, upon our independent review of the record under Penson v. Ohio, 
    488 U.S. 75
    , 80 (1988), we conclude that there are no non-frivolous issues for appeal.
    Therefore, counsel’s motion to withdraw is granted, and the judgment of the district
    court is affirmed.
    ______________________________
    -2-
    

Document Info

Docket Number: 06-1314

Citation Numbers: 223 F. App'x 536

Judges: Gruender, Per Curiam, Shepherd, Smith

Filed Date: 5/8/2007

Precedential Status: Non-Precedential

Modified Date: 11/5/2024