United States v. Guillermo Villanueva-Garcia

413 F. App'x 934

• Court: Court of Appeals for the Eighth Circuit
• Decided: March 24, 2011
• Docket: 10-2815
• Status: Unpublished

Opinion

PER CURIAM.

Guillermo Villanueva-Garcia (Garcia) pled guilty to a drug offense pursuant to a plea agreement in which he waived all rights to appeal his sentence if the court sentenced him to no more than 60 months in prison, the statutory mandatory minimum. The district court 1 sentenced him to 60 months in prison, and he appeals. Appellate counsel has moved to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), challenging the length of the sentence. After careful review, this court will enforce the appeal waiver. See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir.2003) (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). The record shows the requisite knowledge and voluntariness; the appeal waiver applies because Garcia was sentenced to no more than 60 months; and no miscarriage of justice would result from enforcing the waiver. See United States v. McIntosh, 492 F.3d 956, 960 (8th Cir.2007) (appeal waiver was knowing and voluntary when it was included in plea agreement, court questioned defendant about his understanding of waiver, and defendant did not argue on appeal that waiver was unknowing or involuntary). An independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), reveals no nonfrivolous issue not covered by the waiver.

Accordingly, this court grants counsel’s motion to withdraw and dismisses this appeal.

1 . The Honorable Richard H. Kyle, United States District Judge, District of Minnesota.