United States v. Larry Lee , 582 F. App'x 664 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-1360
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Larry Lee, also known as L. Black
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: November 4, 2014
Filed: November 7, 2014
[Unpublished]
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Before WOLLMAN, BYE, and SMITH, Circuit Judges.
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PER CURIAM.
Larry Lee directly appeals the sentence that the district court1 imposed on him
following his guilty plea to being a felon in possession of firearms. On appeal,
1
The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.
counsel for Lee seeks leave to withdraw, and in a brief filed under Anders v.
California, 386 U.S. 738 (1967), she argues that the district court erred in overruling
Lee’s objections to two sentencing enhancements that boosted his offense level. Lee
moves to strike the Anders brief, and in a pro se brief, he also argues that the court
miscalculated his Guidelines range, and he argues as well that the sentence is
substantively unreasonable.
The written plea agreement in this case contains an appeal waiver, which we
will enforce. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (standard
of review). First, by its terms, the appeal waiver applies if--as is the case here--the
district court accepted the guilty plea, applied the parties’ agreements at sentencing,
and after calculating a Guidelines range, sentenced Lee within or below the range.
Further, the arguments raised in this appeal fall within the scope of the waiver, which
covers all sentencing issues except for the calculation of Lee’s criminal history.
Second, after careful review of the plea transcript in this case, we are satisfied that
Lee entered into both the plea agreement and the appeal waiver knowingly and
voluntarily. See Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997)
(defendant’s statements made during plea hearing carry strong presumption of verity).
Third, we conclude that no miscarriage of justice would result from enforcing the
waiver in these circumstances. See United States v. Andis, 333 F.3d 886, 889-92 (8th
Cir. 2003) (en banc) (court should enforce appeal waiver and dismiss appeal where
it falls within scope of waiver, plea agreement and waiver were entered into
knowingly and voluntarily, and no miscarriage of justice would result). Finally,
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 grant counsel leave to withdraw, we deny the motion to strike
as moot, and we dismiss this appeal.
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