UNITED STATES v. DRAPER (2018)

[Unpublished]

Donnell Draper pleaded guilty to being a felon in possession of a firearm. 18 U.S.C. §§ 922(g)(1), 924(a)(2). As part of his plea agreement, Draper waived the right to appeal except to challenge an illegal sentence or to raise ineffective assistance of counsel or prosecutorial misconduct. The district court ¹ sentenced Draper to a prison term at the bottom of the Sentencing Guidelines range, and he now directly appeals his sentence. Draper’s counsel has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and has asked to withdraw. The Anders brief disputes a Guidelines enhancement applied at sentencing and the overall reasonableness of Draper’s sentence.

We review the validity and applicability of an appeal waiver de novo. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010). Upon careful review, we conclude that the appeal waiver is enforceable, that it is applicable to the issues raised in this appeal, and that none of the exceptions to the waiver apply. See United States v. Andis, 333 F.3d 886, 889–92 (8th Cir. 2003) (en banc) (explaining that an appeal waiver will be enforced if the appeal falls within the scope of the waiver, the defendant knowingly and voluntarily entered into the plea agreement and the waiver, and enforcing the waiver would not result in a miscarriage of justice). We have also independently reviewed the record under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and there are no non-frivolous issues for appeal falling outside the scope of the appeal waiver. Accordingly, we dismiss this appeal, and we grant counsel permission to withdraw.

FOOTNOTES

1.   The Honorable Gary A. Fenner, United States District Judge for the Western District of Missouri.

PER CURIAM.