United States v. Demetrius McCalister

PER CURIAM. Demetrius McCalister directly appeals the sentence the district court 1 imposed after he pled guilty to charges involving drugs and firearms. His 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), acknowledging that McCalister entered into a plea agreement containing an appeal waiver, but arguing that the district court, having granted a downward variance, abused its discretion by not imposing a more lenient sentence. Upon careful review, this court concludes that the appeal waiver is enforceable. See United States v. Jennings, 662 F.3d 988, 990 (8th Cir.2011) (court should enforce appeal waiver if both waiver and plea agreement were entered into knowingly and voluntarily, appeal is within waiver’s scope, and no miscarriage of justice would result); see also United States v. Azure, 571 F.3d 769, 772 (8th Cir.2009) (de novo review of whether defendant waived right to appeal sentence). Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), this court finds no nonfrivolous issues outside the scope of the appeal waiver. The appeal is dismissed, and counsel’s motion to withdraw is granted. Footnotes [1] The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri.