United States v. Richard Howard, III , 275 F. App'x 568 ( 2008 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 07-1884
    ___________
    United States of America,               *
    *
    Appellee,                  *
    * Appeal from the United States
    v.                                * District Court for the
    * District of South Dakota.
    Richard W. Howard III,                  *
    *      [UNPUBLISHED]
    Appellant.                 *
    ___________
    Submitted: April 29, 2008
    Filed: May 2, 2008
    ___________
    Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
    ___________
    PER CURIAM.
    Richard W. Howard III (Howard) appeals the 84-month prison sentence the
    district court1 imposed upon him after Howard pled guilty to engaging in a sexual act
    with someone who was physically unable to comprehend or resist the sexual act, in
    violation of 18 U.S.C. §§ 1153, 2242(2), and 2246(2)(A). Howard’s counsel moved
    to withdraw and filed a brief under Anders v. California, 
    386 U.S. 738
    (1967),
    challenging the reasonableness of Howard’s sentence.
    1
    The Honorable Charles B. Kornmann, United States District Judge for the
    District of South Dakota.
    Howard pled guilty pursuant to a plea agreement containing a waiver of any
    right to appeal, except Howard could challenge the reasonableness of his sentence if
    the court imposed a sentence above the applicable advisory Guidelines imprisonment
    range. The district court did not sentence Howard above the applicable Guidelines
    range and in fact sentenced him at the bottom of the range with additional credit for
    the time he had served in tribal custody. We now enforce the appeal waiver because
    the record establishes Howard knowingly and voluntarily entered into the plea
    agreement and waiver; the appeal falls within the scope of the waiver; and no injustice
    would result from enforcing the waiver. See United States v. Andis, 
    333 F.3d 886
    ,
    889-92 (8th Cir. 2003) (en banc) (discussing enforceability of appeal waiver); United
    States v. Estrada-Bahena, 
    201 F.3d 1070
    , 1071 (8th Cir. 2000) (per curiam) (enforcing
    appeal waiver in Anders case).
    Having reviewed the record independently under Penson v. Ohio, 
    488 U.S. 75
    ,
    80 (1988), we find no nonfrivolous issues for appeal beyond the scope of the waiver.
    Therefore, we affirm Howard’s sentence, dismiss the appeal, and grant counsel’s
    motion to withdraw.
    ______________________________
    -2-
    

Document Info

Docket Number: 07-1884

Citation Numbers: 275 F. App'x 568

Filed Date: 5/2/2008

Precedential Status: Non-Precedential

Modified Date: 1/12/2023