United States v. Douglas Franklin

U.S. Court of Appeals for the Eighth Circuit
United States v. Douglas Franklin, 256 F. App'x 889 (8th Cir. 2007)

United States v. Douglas Franklin

Opinion

PER CURIAM.

Douglas Franklin appeals the 63-month prison sentence the district court 1 imposed after he pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal, Franklin’s counsel has moved to withdraw and has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that it would be a miscarriage of justice to enforce the appeal waiver, because, at the time Franklin signed the plea agreement, neither party contemplated that Franklin would not receive a 2-level acceptance-of-responsibility reduction or that he would receive a 2-level obstruction-of-justice enhancement, both of which counsel further maintains were based upon clearly erroneous findings.

Franklin’s written plea agreement contains a valid appeal waiver which encompasses the argument that counsel raises on appeal, and we conclude that the waiver is enforceable and that enforcing it would not cause a miscarriage of justice. See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (discussing enforceability of appeal waiver); see also United States v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam) (enforcing appeal waiver in Anders case).

After reviewing the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and finding no non-frivolous issues not covered by the waiver, we enforce the waiver and dismiss this appeal. We grant counsel’s motion to withdraw on condition that counsel inform appellant about the procedures for filing petitions for rehearing and for certiorari.

1

. The Honorable Karen E. Schreier, Chief Judge, United States District Court for the District of South Dakota.

Reference

Full Case Name
UNITED STATES of America, Appellee, v. Douglas FRANKLIN, Appellant
Status
Unpublished