United States v. Kevin Wallace

Filing

PER CURIAM OPINION FILED - THE COURT: KERMIT E. BYE, MORRIS S. ARNOLD and BOBBY E. SHEPHERD (UNPUBLISHED) granting counsel's motion to withdraw; denying appellant's pending motions [3786079] [10-2798]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 10-2798
___________
United States of America,
Appellee,
v.
Kevin L. Wallace,
Appellant.

*
*
* Appeal from the United States
* District Court for the Eastern
* District of Missouri.
*
* [UNPUBLISHED]
*
*
___________
Submitted: May 6, 2011
Filed: May 11, 2011
___________

Before BYE, ARNOLD, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
Kevin Wallace pleaded guilty to conspiring to distribute and to possess with
intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846. The
district court1 imposed the mandatory minimum sentence of 120 months in prison. On
appeal, Wallace’s counsel seeks leave to withdraw and has filed a brief under Anders
v. California, 386 U.S. 738 (1967), challenging Wallace’s sentence. Wallace has filed
a supplemental brief raising numerous challenges to his conviction and sentence, and
has moved for appointment of new counsel and to stay this appeal pending the United
1

The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.

Appellate Case: 10-2798

Page: 1

Date Filed: 05/11/2011 Entry ID: 3786079

States Supreme Court’s decision in DePierre v. United States, 131 S. Ct. 458 (Oct. 12,
2010).
After careful review, we conclude that Wallace agreed to waive his right to
challenge his conviction on appeal. We also conclude the waiver is enforceable
because (1) Wallace’s plea hearing testimony shows that his plea was voluntary and
that he understood the charge, the potential sentence, and the terms of the plea
agreement, including the appeal waiver; and (2) enforcing the waiver will not result
in a miscarriage of justice. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (solemn
declarations in open court carry strong presumption of verity); United States v. Andis,
333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (criteria for enforcing 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). To the extent the appeal waiver
does not cover Wallace’s challenges to his sentence, we conclude the arguments fail
because the district court lacked discretion to impose a sentence below the statutory
minimum. See 18 U.S.C. § 3553(e), (f) (court’s authority to impose sentence below
statutory minimum); United States v. Sutton, 625 F.3d 526, 528-29 (8th Cir. 2010) (in
appeal challenging 120-month sentence upon conviction for possession with intent to
distribute cocaine base, concluding that district court lacked authority to sentence
defendant below statutory minimum because neither § 3553(e) nor § 3553(f) applied).
We have reviewed the record independently pursuant to Penson v. Ohio, 488
U.S. 75, 80 (1988), and have found no nonfrivolous issues. Accordingly, we grant
counsel’s motion to withdraw, we deny Wallace’s motions, and we affirm the district
court’s judgment.
______________________________

-2-

Appellate Case: 10-2798

Page: 2

Date Filed: 05/11/2011 Entry ID: 3786079