United States v. Robert Rutan

[Unpublished] PER CURIAM. Robert Rutan pleaded guilty to bank robbery, in violation of 18 U.S.C. § 2113(a). At the time of the bank robbery, Rutan was serving two terms of supervised release. The district court 1 sentenced him to 240 months in prison for the bank-robbery offense, revoked his two supervised-release terms, and sentenced him to 24 months in prison for each revocation, with all three prison terms to be served consecutively. On appeal, Rutan’s counsel has moved 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), arguing that the court erred in ordering the prison terms to be served consecutively. Rutan has filed a pro se supplemental brief, challenging the validity of his guilty plea. Upon careful review of the record— which includes a written plea agreement containing an appeal waiver — we conclude that the appeal waiver bars our review of Rutan’s pro se challenge to his guilty plea, but not counsel’s argument that the district court erred in ordering that the three prison terms be served consecutively. See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir.2003) (en banc) (setting forth *841 standard for enforcing appeal waivers). We further conclude that it was not unreasonable for the court to impose consecutive prison terms. See U.S.S.G. § 7B1.3, cmt. n. 4 (Sentencing Commission recommends any sentence of imprisonment for criminal offense that is imposed after revocation of supervised release run consecutively to any term of imprisonment imposed upon revocation); see also United States v. Lee, 545 F.3d 678, 680 (8th Cir.2008) (per cu-riam) (with limited exception, district court’s decision to impose consecutive or concurrent sentence reviewed only for reasonableness). Finally, having independently reviewed the record under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivo-lous issue for appeal. Accordingly, we enforce the appeal waiver with respect to Rutan’s challenge to his guilty plea, we affirm the sentences imposed, and we grant counsel permission to withdraw. Footnotes [1] The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa.