United States v. Larry Thornton, II , 566 F. App'x 542 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-2972
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Larry Johnson Thornton, II
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Arkansas - Texarkana
____________
Submitted: July 31, 2014
Filed: August 7, 2014
[Unpublished]
____________
Before MURPHY, BOWMAN, and BENTON, Circuit Judges.
____________
PER CURIAM.
Larry Johnson Thornton, II directly appeals the sentence imposed by the district
1
court after he pled guilty to distributing marijuana and possessing a firearm during
1
The Honorable Susan O. Hickey, United States District Judge for the Western
District of Arkansas.
a drug-trafficking offense, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D), and 18
U.S.C. § 924(c)(1)(A)(i). In the plea agreement, Thornton “waive[d] the right to
directly appeal the conviction and sentence,” unless his sentence exceeded the
statutory maximum. His counsel has moved to withdraw and filed a brief under
Anders v. California, 386 U.S. 738 (1967), arguing that Thornton’s sentence was
excessive. The government has moved to dismiss the appeal based on the appeal
waiver.
After careful review, this court holds the appeal waiver is valid and shall be
enforced. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (standard of
review); United States v. Andis, 333 F.3d 886, 889-90 (8th Cir. 2003) (en banc)
(appeal-waiver rule). Thornton’s appeal falls within the scope of the waiver. The
record shows that Thornton knowingly and voluntarily entered into the plea agreement
and appeal waiver, as the court discussed both with Thornton during the plea hearing.
Thornton stated that he reviewed the agreement with counsel and understood the
agreement and waiver. See Nguyen v. United States, 114 F.3d 699, 703 (8th Cir.
1997) (defendant’s statements during plea hearing carry strong presumption of verity).
Enforcing the waiver would not result in a miscarriage of justice. See Andis, 333 F.3d
at 891-92 (sentence within statutory range is not miscarriage of justice, and allegation
that sentencing court misapplied Guidelines or abused its sentencing discretion is not
subject to appeal in face of valid appeal waiver); 18 U.S.C. § 924(c)(1)(A)(i), (D)(ii);
21 U.S.C. § 841(b)(1)(D).
An independent review of the record under Penson v. Ohio, 488 U.S. 75, 80
(1988), reveals no nonfrivolous issues outside the scope of the appeal waiver.
The appeal is dismissed. Counsel’s motion to withdraw is granted, subject to
counsel informing appellant about the procedures for seeking rehearing from this
court and for filing a petition for writ of certiorari.
______________________________
-2-