UNITED STATES v. BALSTER (2019)

[Unpublished]

Ryan Lee Balster directly appeals the within-Guidelines sentence the district court ¹ imposed after he pled guilty, pursuant to a plea agreement, to attempting to entice a minor. Having jurisdiction under 28 U.S.C. § 1291, this court dismisses the appeal based on the appeal waiver.

Counsel has moved for leave to withdraw and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that the court should not enforce the appeal waiver because Balster’s sentence was substantively unreasonable. This court concludes that the appeal waiver is enforceable, as the record demonstrates that Balster entered into the plea agreement and the appeal waiver knowingly and voluntarily. See Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997) (defendant’s representations during plea-taking carry strong presumption of verity). Counsel’s arguments fall within the scope of the waiver. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (de novo review); United States v. Andis, 333 F.3d 886, 890-92 (8th Cir. 2003) (en banc) (discussing enforcement of appeal waivers). To the extent counsel asks this court to reconsider the miscarriage-of-justice exception to enforcing appeal waivers, or to make a special exception in this case, the court finds no basis to do so. See Andis, 333 F.3d at 892 (miscarriage-of-justice exception).

This court has reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and has found no non-frivolous issues.

The appeal is dismissed, and counsel’s request to withdraw is granted.

FOOTNOTES

1.   The Honorable Jeffrey L. Viken, Chief Judge, United States District Court for the District of South Dakota.

PER CURIAM.