United States v. Brandon McNeese

• Court: Court of Appeals for the Eighth Circuit
• Decided: October 27, 2022
• Docket: 22-1967
• Status: Unpublished

Opinion

United States Court of Appeals For the Eighth Circuit ___________________________

No. 22-1967 ___________________________

United States of America,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Brandon Eugene McNeese,

lllllllllllllllllllllDefendant - Appellant. ___________________________

No. 22-1968 ___________________________

lllllllllllllllllllllDefendant - Appellant. ____________

Appeals from United States District Court for the Western District of Missouri - Jefferson City ____________ Submitted: September 30, 2022 Filed: October 27, 2022 [Unpublished] ____________

Before COLLOTON, KELLY, and KOBES, Circuit Judges. ____________

PER CURIAM.

Brandon McNeese appeals the sentence the district court1 imposed at his consolidated sentencing hearing after he pleaded guilty, under a plea agreement containing an appeal waiver, to a drug offense and a firearm offense that were charged in 2 separate indictments. His counsel has moved to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967), discussing McNeese’s sentence. McNeese has filed a pro se brief challenging his firearm conviction, and a motion for appointment of new counsel.

Upon careful review, we conclude that the appeal waiver is valid, enforceable, and applicable to the issues raised in this appeal. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (standard of review); United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc).

We have independently reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), and have found no non-frivolous issues for appeal falling outside the scope of the waiver. McNeese argues that 18 U.S.C. § 922(g)(1) is unconstitutional because it exceeds the power granted to Congress under the Commerce Clause, but his argument is foreclosed by circuit precedent. See United States v. Joos, 638 F.3d 581,

1 The Honorable Roseann A. Ketchmark, United States District Judge for the Western District of Missouri.

-2- 586 (8th Cir. 2011). Accordingly, we dismiss this appeal based on the appeal waiver, grant counsel’s motion to withdraw, and deny McNeese’s motion for counsel. ______________________________

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