United States v. Donnie E. Porter

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2774
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Donnie E. Porter, * Western District of Missouri.
*
Appellant. * [UNPUBLISHED]
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Submitted: March 3, 2004
Filed: March 8, 2004
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Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Donnie Porter pleaded guilty to possessing with intent to distribute 50 grams
or more of a substance containing cocaine base, in violation of 21 U.S.C. § 841(a)
and (b)(1)(A). The district court1 sentenced him to 300 months imprisonment and 5
years supervised release. On appeal, his counsel has filed a brief and moved to
withdraw under Anders v. California, 386 U.S. 738 (1967), arguing that the district
court erred in not requiring the government to file a substantial-assistance downward-
departure motion. Porter has not filed a pro se supplemental brief. The government
1
The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri.
has moved to dismiss the appeal based on a limited appeal waiver in Porter’s plea
agreement.
Because Porter knowingly and intelligently waived his right to appeal his
sentence as part of his plea agreement, we dismiss this appeal, which challenges only
his sentence. See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir.) (en banc)
(court should enforce appeal waiver and dismiss appeal where it falls within scope
of waiver, plea agreement was entered into knowingly and voluntarily, and no
miscarriage of justice would result), cert. denied, 124 S. Ct. 501 (2003); United States
v. Michelsen, 141 F.3d 867, 871-72 (8th Cir.) (appeal waiver is enforceable so long
as it resulted from knowing and voluntary decision; examining personal
characteristics of defendant and circumstances surrounding plea agreement when
assessing knowledge and voluntariness of waiver), cert. denied, 525 U.S. 942 (1998);
United States v. Greger, 98 F.3d 1080, 1081 (8th Cir. 1996) (so long as sentence is
not in conflict with negotiated plea agreement, knowing and voluntary waiver of right
to appeal sentence will be enforced). Although Porter moved at sentencing to
withdraw his guilty plea, he does not appeal the district court’s denial of his plea-
withdrawal motion. Given that he has not filed a pro se supplemental brief, we infer
that he has decided not to disturb the substantial benefits he received on account of
the plea agreement: the dismissal of other charges, the reduction of his offense level
for acceptance of responsibility, and the fixing of his sentence near the bottom of the
resulting Guidelines range of 292 to 365 months.
Following our independent review of the record, see Penson v. Ohio, 488 U.S.
75 (1988), we find no nonfrivolous issues. Accordingly, we grant counsel’s motion
to withdraw, and we dismiss the appeal.
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