United States v. Kenneth Davis

United States Court of Appeals
For the Eighth Circuit
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No. 16-3782
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Kenneth R. Davis,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: April 28, 2017
Filed: May 24, 2017
[Unpublished]
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Before COLLOTON, BOWMAN, and KELLY, Circuit Judges.
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PER CURIAM.
Kenneth Davis appeals the 30-year sentence imposed by the district court1 after
he pleaded guilty to producing child pornography, pursuant to a written plea
1
The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.
agreement that contained a waiver of the right to appeal or collaterally challenge his
conviction and sentence. Davis’s counsel has moved to withdraw, and has filed a
brief under Anders v. California, 386 U.S. 738 (1967). Davis has filed a pro se
supplemental brief.
Two of the arguments before us—a challenge to the substantive reasonableness
of the sentence, and a challenge to the calculation of the advisory Guidelines range—
fall within the scope of the appeal waiver. We will enforce the appeal waiver as to
those arguments, because the record demonstrates that Davis entered into the plea
agreement and the appeal waiver knowingly and voluntarily, 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). The remaining arguments arguably are not
barred by the appeal waiver, see United States v. Bradford, 806 F.3d 1151, 1154-55
(8th Cir. 2015), but we need not decide, because they fail on the merits.
Specifically, we find no merit to counsel’s argument that the gender of the
attorneys representing the parties in this matter adversely affected the sentence
imposed. Contrary to Davis’s argument, the district court properly pronounced the
Guidelines range as 360 months, because the 30-year statutory maximum was less
than the Guidelines range of life in prison. See U.S.S.G. § 5G1.1(a). We also reject
Davis’s contention that the court committed plain error warranting relief by
mentioning only some of the factors set forth in 18 U.S.C. § 3553(a), by failing to
explain adequately the sentence imposed, and by not explicitly addressing Davis’s
arguments for leniency. See United States v. Chavarria-Ortiz, 828 F.3d 668, 671 (8th
Cir. 2016); United States v. Godsey, 690 F.3d 906, 912 (8th Cir. 2012); United States
v. Jones, 509 F.3d 911, 915 (8th Cir. 2007). We also see no plain error in the district
court’s order of restitution, given that Davis agreed in his plea agreement to make
restitution to certain victims of criminal activity that was uncharged or charged in
counts that were dismissed. See 18 U.S.C. § 3663(a)(3); United States v. Lopez, No.
16-40620, 2017 WL 1239723, at *1 (5th Cir. Apr. 3, 2017) (per curiam).
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Finally, 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 affirm the judgment of the district court, and
we grant counsel’s motion to withdraw.
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