United States v. Brandon Cuddihe ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-2054
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Brandon David Cuddihe
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: January 28, 2020
Filed: February 13, 2020
[Unpublished]
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Before GRUENDER, BEAM, and KELLY, Circuit Judges.
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PER CURIAM.
Brandon Cuddihe appeals after he pleaded guilty to child pornography offenses
and the district court1 imposed a below-Guidelines prison term. His counsel has
moved for leave to withdraw, and has filed a brief under Anders v. California, 386
U.S. 738 (1967), arguing that Cuddihe’s prison term is substantively unreasonable but
that any review is foreclosed by the appeal waiver in the written plea agreement.
Cuddihe has not filed a pro se supplemental brief.
After careful review, we decline to enforce the appeal waiver, as the record is
insufficient to establish that Cuddihe knowingly and voluntarily entered into it. See
United States v. Andis, 333 F.3d 886, 890–91 (8th Cir. 2003) (en banc); see also
United States v. Boneshirt, 662 F.3d 509, 515–16 (8th Cir. 2011).2 Nevertheless, we
conclude that the district court did not impose a substantively unreasonable sentence.
See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)
(discussing substantive reasonableness); see also United States v. Torres-Ojeda, 829
F.3d 1027, 1030 (8th Cir. 2016) (if defendant was sentenced below Guidelines range,
it is nearly inconceivable that the court abused its discretion in not varying downward
still further). Having independently reviewed the record pursuant to Penson v. Ohio,
488 U.S. 75 (1988), we find no non-frivolous issues for appeal. Accordingly, we
grant counsel’s motion for leave to withdraw, and we affirm.
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1
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri.
2
In light of our ultimate disposition, we need not decide whether counsel’s brief
arguing to the contrary was inadequate under Anders. See Evans v. Clarke, 868 F.2d
267, 268–69 (8th Cir. 1989).
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