United States Court of Appeals For the Eighth Circuit ___________________________ No. 24-1542 ___________________________ United States of America Plaintiff - Appellee v. Simon L. Wertenberger Defendant - Appellant ____________ Appeal from United States District Court for the Western District of Missouri - Kansas City ____________ Submitted: September 30, 2024 Filed: October 3, 2024 [Unpublished] ____________ Before BENTON, KELLY, and ERICKSON, Circuit Judges. ____________ PER CURIAM.

Simon L. Wertenberger appeals the district court’s 1 denial of his second motion to withdraw his guilty plea. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

The Honorable David Gregory Kays, United States District Judge for the Western District of Missouri.

Counsel moved for leave to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that Wertenberger established fair and just reasons to withdraw his guilty plea. See United States v. Ramirez-Hernandez, 449 F.3d 824, 826 (8th Cir. 2006) (district court may permit withdrawal of guilty plea if there is a fair and just reason for the withdrawal).

Upon careful review, this court declines to enforce the appeal waiver, and concludes that the district court did not abuse its discretion in denying the motion to withdraw the guilty plea. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (de novo review of validity and applicability of appeal waiver); Ramirez- Hernandez, 449 F.3d at, 826 (denial of motion to withdraw guilty plea reviewed for abuse of discretion; even if fair and just reason for withdrawal exists, court must also consider whether defendant asserts his innocence of charge, length of time between guilty plea and motion to withdraw it, and whether government will be prejudiced if court grants motion). This court has independently reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), and has found no non-frivolous issues for appeal.

The judgment is affirmed, and counsel’s motion to withdraw is granted. ______________________________

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