United States v. Mark Carmel

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1354
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Mark Carmel, *
also known as Smiley, * [UNPUBLISHED]
*
Appellant. *
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Submitted: May 6, 2008
Filed: May 15, 2008
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Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Mark Carmel appeals the 120-month prison sentence the district court1 imposed
after he pleaded guilty to being a felon in possession of ammunition, in violation of
18 U.S.C. § 922(g)(1). Carmel’s counsel has moved to withdraw and has filed a brief
under Anders v. California, 386 U.S. 738 (1967), arguing that the appeal waiver
contained in Carmel’s plea agreement is not enforceable because the agreement itself
1
The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
was not entered into knowingly and voluntarily. More specifically, Carmel maintains
that he did not understand he was agreeing to a 120-month prison sentence.
We will enforce an appeal waiver where both the plea agreement and the appeal
waiver were entered into knowingly and voluntarily, the appeal falls within the scope
of the waiver, and no miscarriage of justice would result. See United States v. Andis,
333 F.3d 886, 889-92 (8th Cir. 2003) (en banc). After reviewing the record, we
conclude that Carmel knowingly and voluntarily entered into his plea agreement and
appeal waiver. We note that, during the plea hearing, the court advised Carmel that
he was waiving “important appeal rights,” fully quoted the terms of the appeal waiver,
and referred several times to the “agreed 120-month sentence.” The court repeatedly
asked Carmel if he understood, and each time Carmel responded, “Yes, sir.” Cf.
Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court
carry a strong presumption of verity.”). We also conclude that Carmel’s appeal falls
within the scope of the appeal waiver, which provided that he waived all rights to
appeal his sentence unless his prison term exceeded 120 months (the statutory
maximum), and that enforcing the waiver would not result in a miscarriage of justice.
See Andis, 333 F.3d at 891-92; see also United States v. Estrada-Bahena, 201 F.3d
1070, 1071 (8th Cir. 2000) (per curiam) (enforcing appeal waiver in Anders case).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we have found no nonfrivolous issue for appeal beyond the scope of the
waiver. Therefore, we enforce the appeal waiver and dismiss the appeal. We grant
counsel leave to withdraw, subject to the condition that counsel promptly comply with
the requirements of Part V of this Court’s Plan to Implement the Criminal Justice Act
by advising Carmel of the procedures for filing a petition for writ of certiorari pro se.
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