UNITED STATES v. CLAYTON (2020)

United States Court of Appeals, Eighth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Montez L. CLAYTON, Defendant-Appellant.

No. 19-2833

Decided: March 20, 2020

Before COLLOTON, WOLLMAN, and KELLY, Circuit Judges. Todd M. Schultz, Asst. Fed. Public Defender, Kansas City, MO (Laine Cardarella, Fed. Public Defender, on the brief), for appellant. Ashleigh A. Ragner, Asst. U.S. Atty., Kansas City, MO, for appellee.

[Unpublished]

In 2019, Montez Clayton pleaded guilty to four counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and one count of using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district court ¹ sentenced him to a total of 240 months in prison and five years of supervised release, and ordered restitution of $250. Clayton appeals, and his counsel has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), acknowledging that the plea agreement included an appeal waiver, but challenging the substantive reasonableness of the sentence and the district court’s purported failure to address adequately the factors under 18 U.S.C. § 3553(a).

Following de novo review, we conclude that this appeal falls within the scope of the appeal waiver. We will enforce the waiver because the plea agreement and plea colloquy demonstrate that Clayton knowingly and voluntarily entered into the plea agreement, including its waiver provisions, and that enforcing waiver would not result in miscarriage of justice. See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc). In addition, we have independently reviewed the record under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and have found no non-frivolous issues for appeal. We therefore grant counsel leave to withdraw and dismiss this appeal.

FOOTNOTES

1.   The Honorable Greg Kays, United States District Judge for the Western District of Missouri.

PER CURIAM.