United States v. Dwayne Gerard, Sr.

• Court: Court of Appeals for the Eighth Circuit
• Decided: October 31, 2023
• Docket: 22-3614
• Status: Unpublished

Opinion

United States Court of Appeals For the Eighth Circuit ___________________________

No. 22-3614 ___________________________

United States of America

Plaintiff - Appellee

v.

Dwayne Warren Gerard, Sr.

Defendant - Appellant ____________

Appeal from United States District Court for the District of North Dakota - Western ____________

Submitted: September 18, 2023 Filed: October 31, 2023 [Unpublished] ____________

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

PER CURIAM.

Dwayne Gerard pleaded guilty to sexually exploiting children, 18 U.S.C. § 2251(a), (e). His only claim of error is that his sentence is substantively unreasonable. He concedes that he waived his right to appeal in his plea agreement but argues that enforcing the waiver would result in a miscarriage of justice. See United States v. Andis, 333 F.3d 886, 889–90 (8th Cir. 2003) (en banc). Although the district court1 imposed a sentence two to three times greater than what the parties recommended, it is still a below-Guidelines sentence. So enforcing the waiver would not work a miscarriage of justice. See United States v. Pierre, 912 F.3d 1137, 1143–44 (8th Cir. 2019). We dismiss the appeal. ______________________________

1 The Honorable Daniel L. Hovland, United States District Judge for the District of North Dakota. -2-