Thomas Evenstad v. Terry L. Carlson

1The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4385
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Omar R. De Lao Oliveros, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 2, 2006
Filed: November 27, 2006
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Before RILEY, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Omar R. De Lao Oliveros (Oliveros) challenges the sentence imposed by the
district court 1 after he pled guilty to one count of possession with intent to distribute
500 grams or more of a methamphetamine mixture and 500 grams or more of a
cocaine mixture, in violation of 21 U.S.C. §§ 841(a)(1), and 841(b)(1). His counsel
has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738
(1967), arguing that the district court erred at sentencing by denying his request for
a mitigating-role reduction.

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-2-
In his written plea agreement, Oliveros agreed “not to appeal any issues with
respect to this case.” We enforce this appeal waiver, because no miscarriage of justice
would result: the district court properly questioned Oliveros who indicated his plea
was voluntary and knowing, Oliveros understood the plea agreement and the waiver,
and Oliveros’s sentence is consistent with the plea agreement. See United States v.
Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (courts should enforce appeal
waivers and dismiss appeals where the appeal falls within scope of waiver, both the
plea agreement and waiver were entered into knowingly and voluntarily, and no
miscarriage of justice would result; one important way district courts can ensure plea
agreements and appeal waivers are knowing and voluntary is to question defendant
properly about his decision to enter into the plea agreement and to waive his right to
appeal).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues falling outside the scope of the appeal
waiver. Accordingly, we dismiss the appeal and grant counsel’s motion to withdraw.
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