United States v. Marrion Dotson

Filing

PER CURIAM OPINION FILED - THE COURT: ROGER L. WOLLMAN, MICHAEL J. MELLOY and LAVENSKI R. SMITH (UNPUBLISHED); Granting [3863289-2] motion to withdraw as counsel for appellant filed by Ms. Ellen M. Kelly. [3913929] [11-3325]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-3325
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United States of America,
Appellee,
v.
Marrion Dotson,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* Eastern District of Missouri.
*
* [UNPUBLISHED]
*
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Submitted: May 14, 2012
Filed: May 22, 2012
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Before WOLLMAN, MELLOY, and SMITH, Circuit Judges.
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PER CURIAM.
Marrion Dotson directly appeals after he pled guilty to kidnaping and firearm
charges and the district court1 imposed a within-Guidelines-range sentence. His
counsel has moved to withdraw, and has filed a brief under Anders v. California, 386
U.S. 738 (1967), noting that Dotson’s plea agreement contained an appeal waiver, and
raising sentencing issues. Dotson has filed a pro se supplemental brief, raising issues
related to the district court’s conduct at the change-of-plea hearing and related to his
sentence.
1

The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.

Appellate Case: 11-3325

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Date Filed: 05/22/2012 Entry ID: 3913929

We conclude that the appeal waiver in the plea agreement is enforceable as to
Dotson’s pro se arguments challenging the district court’s conduct at the change-ofplea hearing. See United States v. Jennings, 662 F.3d 988, 990 (8th Cir. 2011) (appeal
waiver is generally enforceable if appeal falls within scope of waiver, both waiver and
plea agreement were entered into knowingly and voluntarily, and enforcement of
waiver would not result in miscarriage of justice). Accordingly, we do not consider
those arguments.
We further conclude that the appeal waiver is not enforceable with respect to
the sentencing issues raised in the briefs, because those issues are not within the scope
of the waiver. More specifically, the parties waived their rights to appeal sentencing
issues on the condition, among others, that the court accept the Guidelines total
offense level to which the parties had agreed. That condition was not met. However,
after careful review, we conclude that none of the sentencing issues raised in the briefs
have merit. Dotson’s own admission of facts abundantly supported the district court’s
sentencing determinations, and the court adequately considered the 18 U.S.C.
§ 3553(a) factors. See United States v. Stroud, 673 F.3d 854, 862 (8th Cir. 2012)
(district court is not required to recite § 3553(a) factors mechanically, but it must be
clear that court considered them).
Finally, having independently reviewed the record consistent with Penson v.
Ohio, 488 U.S. 75 (1988), we find no nonfrivolous issue for appeal. Accordingly,
counsel’s motion to withdraw is granted, and the judgment is affirmed.
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Appellate Case: 11-3325

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Date Filed: 05/22/2012 Entry ID: 3913929