United States v. Raphael Alejandrez

Eighth Circuit

United States v. Raphael Alejandrez

60 F. App'x 646

CourtCourt of Appeals for the Eighth Circuit

DecidedApril 3, 2003

Docket02-2180

StatusUnpublished

This text of 60 F. App'x 646 (United States v. Raphael Alejandrez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Raphael Alejandrez, 60 F. App'x 646 (8th Cir. 2003).

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Opinion

PER CURIAM.

After Rafael Alejandrez pleaded guilty to interstate travel in aid of unlawful activity (cocaine distribution) in violation of 18 U.S.C. § 1952, the district court 1 sentenced him to 60 months imprisonment and 3 years supervised release. The written plea agreement contained an appeal waiver in which Mr. Alejandrez agreed not to appeal his sentence unless the sentencing judge departed upward, or imposed a sentence in excess of the statutory maximum or a sentence in violation of law apart from the Guidelines. On appeal, 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). Mr. Alejandrez has filed a pro se supplemental brief, arguing that the district court erred in not granting him a 2-level reduction under U.S.S.G. § 2D1.1(b)(6), and also in not granting a substantial-assistance departure. After careful review of the record, we affirm.

We conclude that the plea agreement’s sentence-appeal waiver should be enforced. Mr. Alejandrez acknowledged his understanding of the appeal waiver at the plea hearing and the sentence imposed was not inconsistent with the plea agreement. See United States v. Morrison, 171 F.3d 567, 568 (8th Cir.1999) (appeal waiver enforced where its language was clear, court brought waiver to defendant’s attention at plea hearing, defendant acknowledged he was waiving appeal rights, and sentence imposed was not contrary to plea agreement). Therefore, we will not entertain Mr. Alejandrez’s sentencing arguments.

Upon reviewing the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous unwaived issues for appeal. Accordingly, we affirm. We also grant counsel’s motion to withdraw.

A true copy.

1

. The Honorable Gary Fenner, United States District Judge for the Western District of Missouri.

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PER CURIAM.

After Rafael Alejandrez pleaded guilty to interstate travel in aid of unlawful activity (cocaine distribution) in violation of 18 U.S.C. § 1952, the district court 1 sentenced him to 60 months imprisonment and 3 years supervised release. The written plea agreement contained an appeal waiver in which Mr. Alejandrez agreed not to appeal his sentence unless the sentencing judge departed upward, or imposed a sentence in excess of the statutory maximum or a sentence in violation of law apart from the Guidelines. On appeal, 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). Mr. Alejandrez has filed a pro se supplemental brief, arguing that the district court erred in not granting him a 2-level reduction under U.S.S.G. § 2D1.1(b)(6), and also in not granting a substantial-assistance departure. After careful review of the record, we affirm.

We conclude that the plea agreement’s sentence-appeal waiver should be enforced. Mr. Alejandrez acknowledged his understanding of the appeal waiver at the plea hearing and the sentence imposed was not inconsistent with the plea agreement. See United States v. Morrison, 171 F.3d 567, 568 (8th Cir.1999) (appeal waiver enforced where its language was clear, court brought waiver to defendant’s attention at plea hearing, defendant acknowledged he was waiving appeal rights, and sentence imposed was not contrary to plea agreement). Therefore, we will not entertain Mr. Alejandrez’s sentencing arguments.

Upon reviewing the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous unwaived issues for appeal. Accordingly, we affirm. We also grant counsel’s motion to withdraw.

A true copy.

1

. The Honorable Gary Fenner, United States District Judge for the Western District of Missouri.

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60 F. App'x 646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-raphael-alejandrez-ca8-2003.

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