United States v. Maximino Martinez-Gutierrez, No. 10-1050 (8th Cir. 2010)
Annotate this CaseCourt Description: Criminal case - criminal law. Anders case. Defendant executed a knowing and voluntary waiver of his appeal rights as part of his plea agreement, and the appeal is dismissed.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 10-1050 ___________ United States of America, Appellee, v. Maximino Martinez-Gutierrez, Appellant. * * * Appeal from the United States * District Court for the * District of Minnesota. * * [UNPUBLISHED] * * ___________ Submitted: September 14, 2010 Filed: September 17, 2010 ___________ Before LOKEN, MURPHY, and BENTON, Circuit Judges. ___________ PER CURIAM. Pursuant to a written plea agreement containing an appeal waiver, Maximino Martinez-Gutierrez pled guilty to one count of conspiring to distribute 50 grams or more of actual methamphetamine and 500 grams or more of cocaine, in violation of 21 U.S.C. ยงยง 841(a)(1), (b)(1), and 846. The district court1 sentenced MartinezGutierrez to 130 months in prison and 5 years of supervised release. On appeal, counsel has moved to withdraw, and has filed a brief under Anders v. California, 386 1 The Honorable Ann D. Montgomery, United States District Judge for the District of Minnesota. U.S. 738 (1967), arguing that the district court should not have applied a Guidelines sentencing enhancement. We enforce the appeal waiver because this appeal falls within the scope of the waiver, the record shows Martinez-Gutierrez entered both the plea agreement and the waiver knowingly and voluntarily, and 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) (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); see also United States v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam) (enforcing appeal waiver in Anders case). We reviewed the record independently under Penson v. Ohio, 488 U.S. 75 (1988) and we found no nonfrivolous issues that are not covered by the appeal waiver. Accordingly, we grant counsel s motion to withdraw, and we dismiss the appeal. ______________________________ -2-
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