United States v. Theola Blackmon

1The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2238
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Graciela Toledo, also known as * [UNPUBLISHED]
Esmeralda Moreno, *
*
Appellant. *
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Submitted: April 6, 2010
Filed: April 7, 2010
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Before RILEY, Chief Judge, BYE, and SHEPHERD, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal, Graciela Toledo challenges the judgment and
sentence imposed by the district court 1 after she pleaded guilty to a drug offense. Her
counsel has moved to withdraw and has filed a brief under Anders v. California, 386
U.S. 738 (1967).

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Toledo’s plea agreement contains an appeal waiver, and we will enforce it. 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). Toledo’s arguments on appeal fall within the
scope of the appeal waiver, the record shows the requisite knowledge and
voluntariness, and we see nothing to suggest that a miscarriage of justice would result
from enforcing the appeal waiver. See id. at 890-91 (“One important way a district
court can help ensure that a plea agreement and corresponding waiver are entered into
knowingly and voluntarily is to properly question a defendant about his or her
decision to enter that agreement and waive the right to appeal.”) Further, any
ineffective-assistance claim is not properly raised in this direct criminal appeal, see
United States v. Ramirez-Hernandez, 449 F.3d 824, 827 (8th Cir. 2006); and we find
nothing in the record to suggest the government breached the plea agreement.
Having reviewed the record independently pursuant to Penson v. Ohio, 488
U.S. 75 (1988), for any nonfrivolous issues not covered by the waiver, we find none.
Accordingly, we grant counsel’s motion to withdraw, and we dismiss the appeal.
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