United States v. Thirplus Moose

Eighth Circuit

United States v. Thirplus Moose

529 F. App'x 807

CourtCourt of Appeals for the Eighth Circuit

DecidedSeptember 11, 2013

Docket13-1153

StatusUnpublished

Cited by2 cases

This text of 529 F. App'x 807 (United States v. Thirplus Moose) 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. Thirplus Moose, 529 F. App'x 807 (8th Cir. 2013).

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Opinion

PER CURIAM.

Thirplus Moose appeals the sentence that the district court 1 imposed upon his guilty plea to conspiracy to commit armed bank robbery and attempted armed bank robbery, to use and carry a firearm during and in relation to a crime of violence, and to engage in carjacking (Count 1); to armed bank robbery and forcible restraint (Count 2); and to use or discharge of a firearm during a crime of violence causing murder (Count 5). Seeking leave to withdraw, Moose’s counsel 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 because it was imposed at the top of the sentencing range agreed upon by the parties in their Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement. Moose has not filed a pro se brief, despite being granted two extensions of time to do so. He now moves for additional time to “amend” his appeal. We deny the motion. Moose was told that this court would grant no further extensions of time to file a brief, and further, he does not specify what issues he would raise.

As to the appeal itself, we note that the plea agreement in this ease contains a waiver of Moose’s right to appeal his conviction and sentence. We will enforce the appeal waiver, because (1) the argument raised on appeal falls within the scope of the sentence-appeal waiver, which applies unless the sentence is challenged based on ineffective assistance of counsel, prosecu-torial misconduct, or illegality; (2) the record reflects that Moose entered into both the waiver and the plea agreement knowingly and voluntarily; and (3) no miscarriage of justice would result from enforcing the waiver. See 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, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and find no nonfrivo-lous issues for appeal outside the scope of the appeal waiver. Accordingly, we grant counsel’s motion, deny Moose’s motion, and dismiss the appeal.

1

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

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PER CURIAM.

Thirplus Moose appeals the sentence that the district court 1 imposed upon his guilty plea to conspiracy to commit armed bank robbery and attempted armed bank robbery, to use and carry a firearm during and in relation to a crime of violence, and to engage in carjacking (Count 1); to armed bank robbery and forcible restraint (Count 2); and to use or discharge of a firearm during a crime of violence causing murder (Count 5). Seeking leave to withdraw, Moose’s counsel 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 because it was imposed at the top of the sentencing range agreed upon by the parties in their Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement. Moose has not filed a pro se brief, despite being granted two extensions of time to do so. He now moves for additional time to “amend” his appeal. We deny the motion. Moose was told that this court would grant no further extensions of time to file a brief, and further, he does not specify what issues he would raise.

As to the appeal itself, we note that the plea agreement in this ease contains a waiver of Moose’s right to appeal his conviction and sentence. We will enforce the appeal waiver, because (1) the argument raised on appeal falls within the scope of the sentence-appeal waiver, which applies unless the sentence is challenged based on ineffective assistance of counsel, prosecu-torial misconduct, or illegality; (2) the record reflects that Moose entered into both the waiver and the plea agreement knowingly and voluntarily; and (3) no miscarriage of justice would result from enforcing the waiver. See 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, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and find no nonfrivo-lous issues for appeal outside the scope of the appeal waiver. Accordingly, we grant counsel’s motion, deny Moose’s motion, and dismiss the appeal.

1

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

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