United States v. Felton Gooseberry

Eighth Circuit

United States v. Felton Gooseberry

162 F. App'x 687

Court of Appeals for the Eighth Circuit·Decided January 20, 2006·No. 04-3596·Unpublished

Opinion

PER CURIAM.

Felton Gooseberry appeals the sentence the district court 1 imposed after he pleaded guilty to distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(B)(iii). His counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Gooseberry has filed a pro se supplemental brief, arguing that his sentence should be vacated under Blakely *688 v. Washington, 542 U.S. 296, 124 S.Ct. 2531,159 L.Ed.2d 403 (2004).

We enforce the broad appeal waiver included in Gooseberry’s written plea agreement: the district court conducted a proper Federal Rule of Criminal Procedure 11 colloquy and discussed the appeal waiver with Gooseberry, who affirmed that his plea was voluntary and that he understood the plea agreement and the waiver; this appeal falls within the scope of the waiver; and no injustice would result. 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, both plea agreement and waiver were entered into knowingly and voluntarily, and no miscarriage of justice would result; one important way district court can ensure plea agreement and appeal waiver are knowing and voluntary is to properly question defendant about decision to enter agreement and to waive right to appeal), cert. denied, 540 U.S. 997, 124 S.Ct. 501, 157 L.Ed.2d 398 (2003). The waiver also covered any issues under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Reeves, 410 F.3d 1031, 1034-35 (8th Cir.) (right to appeal under Booker is among rights waived by broad appeal waiver, even if defendant did not anticipate Booker ruling), cert. denied, — U.S.-, 126 S.Ct. 469, 163 L.Ed.2d 357 (2005).

Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no nonfrivolous issues not covered by the waiver. Accordingly, we dismiss the appeal and grant counsel’s motion to withdraw.

1

. The Honorable Stephen Limbaugh, United States District Judge for the Eastern District of Missouri.

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PER CURIAM.

Felton Gooseberry appeals the sentence the district court 1 imposed after he pleaded guilty to distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(B)(iii). His counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Gooseberry has filed a pro se supplemental brief, arguing that his sentence should be vacated under Blakely *688 v. Washington, 542 U.S. 296, 124 S.Ct. 2531,159 L.Ed.2d 403 (2004).

We enforce the broad appeal waiver included in Gooseberry’s written plea agreement: the district court conducted a proper Federal Rule of Criminal Procedure 11 colloquy and discussed the appeal waiver with Gooseberry, who affirmed that his plea was voluntary and that he understood the plea agreement and the waiver; this appeal falls within the scope of the waiver; and no injustice would result. 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, both plea agreement and waiver were entered into knowingly and voluntarily, and no miscarriage of justice would result; one important way district court can ensure plea agreement and appeal waiver are knowing and voluntary is to properly question defendant about decision to enter agreement and to waive right to appeal), cert. denied, 540 U.S. 997, 124 S.Ct. 501, 157 L.Ed.2d 398 (2003). The waiver also covered any issues under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Reeves, 410 F.3d 1031, 1034-35 (8th Cir.) (right to appeal under Booker is among rights waived by broad appeal waiver, even if defendant did not anticipate Booker ruling), cert. denied, — U.S.-, 126 S.Ct. 469, 163 L.Ed.2d 357 (2005).

Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no nonfrivolous issues not covered by the waiver. Accordingly, we dismiss the appeal and grant counsel’s motion to withdraw.

1

. The Honorable Stephen Limbaugh, United States District Judge for the Eastern District of Missouri.

United States v. Felton Gooseberry, 162 F. App'x 687 (8th Cir. 2006).

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