United States v. Orlando Preston

United States Court of Appeals
For the Eighth Circuit
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No. 14-2754
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Orlando Preston, also known as Nizza P. El
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: March 5, 2015
Filed: March 26, 2015
[Unpublished]
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Before SMITH, GRUENDER, and BENTON, Circuit Judges.
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PER CURIAM.
Orlando Eric Preston, also known as Nizza P. El, directly appeals the district
court’s1 judgment in his criminal case. After careful review, this court affirms.
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The Honorable Catherine D. Perry, Chief Judge, United States District Court
for the Eastern District of Missouri.
Preston pled guilty to conspiring to commit an offense against the United
States, mail fraud, and operating a chop shop, in violation of 18 U.S.C. §§ 371, 1341,
and 2322. As part of the written plea agreement, he waived the right to appeal “all
non-jurisdictional, non-sentencing issues”; and the right to appeal “all sentencing
issues other than Criminal History” if the district court adopted the parties’ agreed-
upon total offense level and sentenced him within or below the Guidelines range.
The court adopted the parties’ agreed-upon total offense level, sentenced Preston
below the Guidelines range to 60 months in prison, and ordered him to pay
$194,107.93 in restitution to identified victims pursuant to 18 U.S.C. § 3663A. In a
brief filed under Anders v. California, 386 U.S. 738 (1967), counsel argues that the
restitution amount was excessive. In a pro se pleading, Preston argues that the district
court lacked jurisdiction over him, thus his conviction was a miscarriage of justice.
The appeal waiver precludes counsel’s challenge to the restitution amount. See
United States v. Andis, 333 F.3d 886, 889-90 (8th Cir. 2003) (en banc) (appeal-waiver
rule). The restitution issue falls within the scope of the waiver, see United States v.
Lee, 502 F.3d 780, 780-81 (8th Cir. 2007) (appeal waiver barred challenge to
restitution order, as defendant waived right to challenge all non-jurisdictional issues
and did not preserve challenge to restitution); the record demonstrates that Preston
knowingly and intelligently entered into the plea agreement and appeal waiver, see
Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997) (defendant’s statements
during plea hearing carry strong presumption of verity); and enforcing the waiver
would not result in a miscarriage of justice, see United States v. Schulte, 436 F.3d
849, 849-51 (8th Cir. 2006) (appeal challenging restitution amount does not fall
within miscarriage-of-justice exception to appeal-waiver rule). While Preston’s pro
se challenge to the district court’s jurisdiction is beyond the scope of the appeal
waiver, it fails on the merits. See 18 U.S.C. § 3231 (district courts have original
jurisdiction of all offenses against laws of United States); United States v. James, 328
F.3d 953, 954-55, 958 (7th Cir. 2003) (laws of United States apply to all persons
within its borders; affirming conviction of defendant “Moorish national”). An
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independent review of the record under Penson v. Ohio, 488 U.S. 75, 80 (1988),
reveals no nonfrivolous issues for appeal.
The judgment is affirmed. Counsel’s motion to withdraw is granted.
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