United States v. Orlando Wynn

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3332
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Orlando D. Wynn, * [UNPUBLISHED]
*
Appellant. *
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Submitted: March 6, 2002
Filed: March 13, 2002
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Before HANSEN, Chief Judge, WOLLMAN, and BYE, Circuit Judges.
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PER CURIAM.
Orlando D. Wynn pleaded guilty to knowingly possessing a firearm transported
in interstate commerce after he had been convicted of a felony, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2), and the district court1 sentenced him to 51 months
in prison and 3 years of supervised release. The plea agreement included Wynn’s
promise not to appeal his sentence “on any ground other than an upward departure by
the sentencing judge, a sentence in excess of the statutory maximum, or a sentence
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
in violation of law apart from the Sentencing Guidelines.” On appeal, counsel has
moved to withdraw under Anders v. California, 386 U.S. 738 (1967), and has filed
a brief raising the issue whether Wynn should have received a 4-level enhancement
for having used the firearm in connection with another felony offense. Wynn has
filed a pro se supplemental brief, in which he argues that the 4-level enhancement
constituted an upward departure, that application of the enhancement violated the
plea agreement, and that his trial counsel was ineffective.
We find that Wynn waived his right to appeal the enhancement, as it did not
constitute an upward departure from the sentencing range or breach the plea
agreement, see United States v. Street, 257 F.3d 869, 870 (8th Cir. 2001), and our
review of the record satisfies us that his waiver of the right to appeal his sentence was
knowing and voluntary, see United States v. Michelsen, 141 F.3d 867, 871-72 (8th
Cir.), cert. denied, 525 U.S. 942 (1998). Wynn’s ineffective-assistance claim is not
properly presented in this proceeding. See United States v. Cain, 134 F.3d 1345,
1352 (8th Cir. 1998).
Moreover, following our independent review, see Penson v. Ohio, 488 U.S. 75
(1988), we find no nonfrivolous issues. Accordingly, we affirm the sentence, and we
grant counsel’s motion to withdraw.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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