United States v. Eulogia Barberena ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3797
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Eulogia Barberena, also known as La Coca
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: April 24, 2017
Filed: May 2, 2017
[Unpublished]
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Before RILEY, MURPHY, and SHEPHERD, Circuit Judges.
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PER CURIAM.
After Eulogia Barberena pleaded guilty to conspiracy to distribute
methamphetamine, the district court1 sentenced her to 87 months in prison, in
1
The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
accordance with the parties’ Federal Rule of Criminal Procedure 11(c)(1)(C) written
plea agreement, in which Barberena waived the right to challenge her conviction and
sentence with certain exceptions. On appeal, counsel has moved to withdraw, and in
a brief filed under Anders v. California, 386 U.S. 738 (1967), counsel argues (1)
Barberena’s plea was involuntary, because she did not understand or appreciate the
proceedings or the plea agreement, since she did not understand English and has a
limited education; and (2) the sentence is unreasonable, because it was based on the
plea agreement.
Barberena’s challenge to the validity of her guilty plea is not properly before
the court, because she did not move to withdraw her guilty plea below. See United
States v. Umanzor, 617 F.3d 1053, 1060 (8th Cir. 2010). In addition, we will enforce
the appeal waiver as to her sentencing challenge, because our review of the record
(which, among other things, confirms the presence of an interpreter at the plea and
sentencing hearings) demonstrates that Barberena entered into the plea agreement and
the appeal waiver knowingly and voluntarily; the argument falls within the scope of
the appeal waiver; and no miscarriage of justice would result from enforcing the
waiver. See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc).
Having independently reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988),
we find no nonfrivolous issues for appeal falling outside the scope of the appeal
waiver.
Accordingly, we grant counsel’s motion to withdraw, and we dismiss this
appeal.
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