CDI Energy Services v. West River Pumps

1The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-1244
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Kirk Allen Newby, * [UNPUBLISHED]
*
Appellant. *
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Submitted: May 8, 2009
Filed: May 13, 2009
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Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
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PER CURIAM.
Kirk Newby appeals the 180-month sentence the district court 1 imposed after
he pleaded guilty to drug and firearm charges. On appeal, his counsel has filed a brief
under Anders v. California, 386 U.S. 738 (1967), in which she requests leave to
withdraw.
Upon careful review, we conclude that this appeal falls within the scope of a
valid appeal waiver that was contained in Newby’s written plea agreement, that he

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knowingly and voluntarily entered into the plea agreement and the appeal waiver, and
that enforcing the appeal waiver would not result in a miscarriage of justice. See
United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (discussing
enforceability of appeal waiver); see also United States v. Estrada-Bahena, 201 F.3d
1070, 1071 (8th Cir. 2000) (per curiam) (enforcing appeal waiver in Anders case).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issue for appeal beyond the scope of the appeal
waiver. Accordingly, we dismiss the appeal. We also grant defense counsel’s motion
to withdraw on condition that counsel inform appellant about the procedures for filing
petitions for rehearing and for certiorari.
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