Charity Wierman v. Casey's General Stores

1The Honorable Richard H. Kyle, United States District Judge, District of
Minnesota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2815
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
Guillermo Villanueva-Garcia, * [UNPUBLISHED]
*
Appellant. *
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Submitted: March 21, 2011
Filed: March 24, 2011
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Before MELLOY, GRUENDER, and BENTON, Circuit Judges.
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PER CURIAM.
Guillermo Villanueva-Garcia (Garcia) pled guilty to a drug offense pursuant to
a plea agreement in which he waived all rights to appeal his sentence if the court
sentenced him to no more than 60 months in prison, the statutory mandatory
minimum. The district court 1 sentenced him to 60 months in prison, and he appeals.
Appellate counsel has moved to withdraw, and has filed a brief under Anders v.
California, 386 U.S. 738 (1967), challenging the length of the sentence. After careful

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review, this court will enforce the appeal waiver. 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).
The record shows the requisite knowledge and voluntariness; the appeal waiver
applies because Garcia was sentenced to no more than 60 months; and no miscarriage
of justice would result from enforcing the waiver. See United States v. McIntosh, 492
F.3d 956, 960 (8th Cir. 2007) (appeal waiver was knowing and voluntary when it was
included in plea agreement, court questioned defendant about his understanding of
waiver, and defendant did not argue on appeal that waiver was unknowing or
involuntary). An independent review of the record pursuant to Penson v. Ohio, 488
U.S. 75 (1988), reveals no nonfrivolous issue not covered by the waiver.
Accordingly, this court grants counsel’s motion to withdraw and dismisses this
appeal.
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