UNITED STATES v. MURRAY (2021)

[Unpublished]

Earl Murray received a 108-month prison sentence after pleading guilty to conspiracy to distribute methamphetamine. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. As relevant here, the plea agreement waived his right to appeal “any issues relating to pretrial motions ․ and the guilty plea.” In an Anders brief, Murray's counsel requests permission to withdraw and suggests that the district court ¹ should have permitted Murray to withdraw his plea. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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 waiver in this case is both applicable and enforceable. See United States v. Andis, 333 F.3d 886, 889–92 (8th Cir. 2003) (en banc) (explaining when an appeal waiver will be enforced).² We have also independently reviewed the record and conclude that no other non-frivolous issues exist. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). Accordingly, we dismiss the appeal and grant counsel permission to withdraw.

Earl Murray appeals the denial of his motion to withdraw his guilty plea. The plea agreement he entered contains an appeal waiver, but Earl Murray asserts that he did not knowingly and voluntarily enter the agreement. Because Murray did not waive the right to appeal the voluntariness of his plea, see United States v. Haubrich, 744 F.3d 554, 558 (8th Cir. 2014) (appeal waiver in plea agreement did not bar appeal of denial of motion to withdraw guilty plea because defendant “did not agree to waive any appeal challenging the plea's voluntariness”), the issue he raises is properly before us. Nevertheless, a review of the record shows that the district court did not abuse its discretion in denying the motion, and that Murray's plea was knowing and voluntary. See United States v. Green, 521 F.3d 929, 931 (8th Cir. 2008). I concur in affirming the judgment of the district court.

FOOTNOTES

1.   The Honorable Audrey G. Fleissig, United States District Judge for the Eastern District of Missouri.

2.   The record demonstrates that Murray knowingly and voluntarily entered into the plea agreement and the appeal waiver. See United States v. Gray, 528 F.3d 1099, 1102 (8th Cir. 2008).

PER CURIAM.