United States v. Jesus Vazquez-Espinoza ( 2019 )


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  •                   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 19-1712
    ___________________________
    United States of America,
    lllllllllllllllllllllPlaintiff - Appellee,
    v.
    Jesus Jonathan Vazquez-Espinoza,
    lllllllllllllllllllllDefendant - Appellant.
    ____________
    Appeal from United States District Court
    for the Northern District of Iowa - Sioux City
    ____________
    Submitted: October 1, 2019
    Filed: October 9, 2019
    [Unpublished]
    ____________
    Before LOKEN, COLLOTON, and GRASZ, Circuit Judges.
    ____________
    PER CURIAM.
    Jesus Vazquez-Espinoza appeals the below-Guidelines-range sentence the
    district court1 imposed after he pleaded guilty to a drug offense, pursuant to a plea
    1
    The Honorable Leonard T. Strand, Chief Judge, United States District Court
    for the Northern District of Iowa.
    agreement containing an appeal waiver. His counsel has moved to withdraw, and has
    filed a brief under Anders v. California, 
    386 U.S. 738
    (1967), presenting as possible
    issues whether the appeal waiver is enforceable, and whether Vazquez-Espinoza’s
    sentence is substantively unreasonable. Vazquez-Espinoza has filed a pro se brief
    stating that his counsel forced him to plead guilty, and asserting a potential
    suppression issue.
    Initially, to the extent Vazquez-Espinoza asserts that his plea was involuntary,
    we conclude that such a claim is not cognizable on appeal because he did not move
    in the district court to withdraw his plea. See United States v. Foy, 
    617 F.3d 1029
    ,
    1033-34 (8th Cir. 2010). As to the remaining arguments in both the Anders brief and
    Vazquez-Espinoza’s pro se brief, we conclude that the appeal waiver is valid and
    enforceable because Vazquez-Espinoza knowingly and voluntarily entered into the
    plea agreement and the appeal waiver, the arguments fall within the scope of the
    appeal waiver, and no miscarriage of justice would result from enforcing the waiver.
    See United States v. Scott, 
    627 F.3d 702
    , 704 (8th Cir. 2010); United States v. Andis,
    
    333 F.3d 886
    , 889-92 (8th Cir. 2003) (en banc). Finally, we have independently
    reviewed the record under Penson v. Ohio, 
    488 U.S. 75
    (1988), and have found no
    non-frivolous issues for appeal falling outside the scope of the appeal waiver.
    Accordingly, we dismiss this appeal, and grant counsel leave to withdraw.
    ______________________________
    -2-