United States v. James Swift

United States Court of Appeals
For the Eighth Circuit
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No. 14-3597
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
James Swift, also known as James Equanice Swift
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Fargo
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Submitted: April 2, 2015
Filed: April 16, 2015
[Unpublished]
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Before BYE, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
James Swift directly appeals the sentence the district court1 imposed after he
pled guilty to a drug-related charge. His counsel has moved to withdraw, and has
1
The Honorable Ralph R. Erickson, Chief Judge, United States District Court
for the District of North Dakota.
filed a brief citing Anders v. California, 386 U.S. 738 (1967), and acknowledging an
appeal waiver in Swift’s plea agreement.
Upon careful de novo review, we conclude that the appeal waiver is
enforceable. See United States v. Andis, 333 F.3d 886, 889-90 (8th Cir. 2003) (en
banc) (appeal waiver will be enforced where appeal falls within scope of waiver, plea
agreement and waiver were entered into knowingly and voluntarily, and no
miscarriage of justice would result); see also United States v. Scott, 627 F.3d 702,
704 (8th Cir. 2010) (de novo review of validity and applicability of appeal waiver).
In addition, having reviewed the record independently under Penson v. Ohio, 488
U.S. 75 (1988), we find no non-frivolous issues outside the scope of the appeal
waiver. Accordingly, we dismiss this appeal based upon the appeal waiver.
As for counsel’s motion to withdraw, we conclude that allowing counsel to
withdraw at this time would not be consistent with the Eighth Circuit’s 1994
Amendment to Part V of the Plan to Implement The Criminal Justice Act of 1964.
We therefore deny counsel’s motion to withdraw as premature, without prejudice to
counsel refiling the motion upon fulfilling the duties set forth in the Amendment.
Judge Colloton would grant counsel’s motion to withdraw. See United States
v. Eredia, 578 Fed. Appx. 620, 621 (8th Cir. 2014) (unpublished per curiam)
(Colloton, J., concurring in part and dissenting in part.)
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