United States v. David Allen Clime , 264 F. App'x 540 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3609
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
David Allen Clime, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 23, 2008
Filed: February 4, 2008
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Before BYE, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.
David Allen Clime appeals the 120-month prison sentence the district court1
imposed upon his guilty plea to conspiring to manufacture at least 5 grams of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii), and 846.
His counsel has moved to withdraw and filed a brief under Anders v. California, 386
U.S. 738 (1967), arguing that the district court erred in not requiring the government
to file a substantial-assistance downward-departure motion and in not crediting Clime
1
The Honorable Robert W. Pratt, Chief Judge, United States District Court for
the Southern District of Iowa.
for time he had spent in state custody. Clime has tendered an untimely pro se
supplemental brief, and we grant his motion for leave to file it.
Clime pleaded guilty pursuant to a plea agreement that contained a waiver of
his right to appeal his conviction and sentence. We will enforce the appeal waiver
here. The record reflects that Clime understood and voluntarily accepted the terms of
the plea agreement, including the appeal waiver; the appeal falls within the scope of
the waiver; and we conclude that no injustice would result from enforcing it. See
United States v. Andis, 333 F.3d 886, 889-90 (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). Clime’s
assertion in his supplemental brief that the government breached the plea agreement
by not moving for a downward departure does not provide a basis for setting aside the
appeal waiver. See United States v. Amezcua, 276 F.3d 445, 447 (8th Cir. 2002)
(when government expressly reserves discretion whether to move for downward
departure based on substantial assistance, appeals court will perform only limited
review of decision; decision may be challenged only if defendant makes substantial
threshold showing that government refused to file motion for constitutionally
impermissible reasons, such as race or religion).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we have found no nonfrivolous issues for appeal beyond the scope of the
waiver. Therefore, we dismiss the appeal, we grant counsel’s motion to withdraw, and
we deny Clime’s motion for appointment of substitute counsel.
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