United States v. James Boesen, Jr.

1The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-2819
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
Marco Patrick Crespo, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: March 10, 2010
Filed: March 16, 2010
___________
Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
___________
PER CURIAM.
In this direct criminal appeal, Marco Crespo challenges the 37-month sentence
the District Court 1 imposed after he pleaded guilty to an immigration offense.
Crespo’s counsel has moved to withdraw and has filed a brief under Anders v.
California, 386 U.S. 738 (1967), acknowledging the existence of an appeal waiver in
Crespo’s written plea agreement, but nevertheless arguing that Crespo’s sentence is
substantively unreasonable.

-- 1 of 2 --

-2-
Upon careful review, we conclude that enforcement of the appeal waiver is
warranted because Crespo’s appeal falls within the scope of the waiver, Crespo
knowingly and voluntarily entered into both the plea agreement and the appeal waiver,
and enforcement of the waiver would not result in a miscarriage of justice given that
Crespo received a sentence well below the correctly calculated Guidelines range and
his mitigating circumstances are not extraordinary. See United States v. Andis, 333
F.3d 886, 889–92 (8th Cir.) (en banc) (holding that enforcement of an appeal waiver
in a plea agreement is appropriate where the appeal falls within the scope of the
waiver, defendant knowingly and voluntarily entered into both the plea agreement and
the waiver, and enforcement of the waiver would not result in a miscarriage of
justice), cert. denied, 540 U.S. 997 (2003); see also United States v. Estrada-Bahena,
201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam) (dismissing appeal in an Anders
case based on an enforceable appeal waiver).
Furthermore, we have reviewed the record independently under Penson v. Ohio,
488 U.S. 75, 80 (1988), and we have found no non-frivolous issue beyond the scope
of the appeal waiver. Accordingly, we grant counsel’s motion to withdraw, and we
dismiss the appeal.
______________________________

-- 2 of 2 --