UNITED STATES v. BURTON (2021)

United States Court of Appeals, Eighth Circuit.2021-05-11No. No. 20-2979, No. 20-2983

Summary · law.co

Holding. The court dismissed the appeal in part based on the enforceability of the appeal waiver, affirmed the sentence as to remaining issues, and granted counsel's motion to withdraw.

Kenton Burton appealed his sentence following a guilty plea to bank robbery and revocation of his supervised release. His appellate counsel filed a motion to withdraw and submitted a brief under Anders v. California raising challenges to a brandishing enhancement and the overall reasonableness of both his bank robbery sentence and supervised release revocation sentence. The appellate court found that Burton had signed a valid appeal waiver in his plea agreement that covered the issues he sought to raise. The court also independently examined the record for any viable non-waived claims and found none. Additionally, the court reviewed Burton's remaining arguments—regarding criminal history calculation and the reasonableness of the revocation sentence—and determined both were properly handled by the district court.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Validity and enforceability of appeal waiver in guilty plea agreement
Brandishing enhancement challenge
Substantive reasonableness of bank robbery sentence
Criminal history calculation under sentencing guidelines
Reasonableness of supervised release revocation sentence

Procedural posture

Burton appealed his consolidated sentence for bank robbery and revocation of supervised release following a guilty plea, with appellate counsel moving to withdraw and filing an Anders brief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

[Unpublished]

In these consolidated appeals, Kenton Burton appeals the sentence the district court

imposed at his consolidated sentencing after he pleaded guilty to bank robbery and his supervised release was revoked. His counsel has moved for leave to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), challenging the sentence.

Upon careful review, we conclude that the appeal waiver is valid, enforceable, and applicable to the issues counsel raises challenging the brandishing enhancement and the substantive reasonableness of the bank robbery sentence. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (validity and applicability of an appeal waiver is reviewed de novo); United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (appeal waiver will be enforced if the appeal falls within the scope of the waiver, the defendant knowingly and voluntarily entered into the plea agreement and the waiver, and enforcing the waiver would not result in a miscarriage of justice).

To the extent Burton challenges the calculation of his criminal history, we conclude that the district courts calculation was correct. See United States v. Turner, 781 F.3d 374, 393 (8th Cir. 2015) (construction and application of Guidelines are reviewed de novo). To the extent he challenges the reasonableness of his supervised release revocation sentence, we conclude it was not substantively unreasonable. See United States v. Miller, 557 F.3d 910, 915-18 (8th Cir. 2009) (substantive reasonableness of revocation sentence is reviewed under deferential abuse-of-discretion standard).

We have also independently reviewed the record under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and have found no non-frivolous issues for appeal falling outside the scope of the waiver. Accordingly, we dismiss this appeal in part based on the appeal waiver, otherwise affirm, and we grant counsels motion to withdraw.

FOOTNOTES

. The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri.

PER CURIAM.