United States v. Francisco Macias-Perez

Filing

PER CURIAM OPINION FILED - THE COURT: KERMIT E. BYE, RAYMOND W. GRUENDER and DUANE BENTON (UNPUBLISHED); Granting [3893642-2] motion to withdraw as counsel filed by Mr. Mark C. Meyer. [3936365] [11-3664]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 11-3664
___________
United States of America,
Appellee,
v.
Francisco Javier Macias-Perez,
Appellant.

*
*
* Appeal from the United States
* District Court for the
* Northern District of Iowa.
*
* [UNPUBLISHED]
*
*
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Submitted: July 26, 2012
Filed: July 27, 2012
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Before BYE, GRUENDER, and BENTON, Circuit Judges.
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PER CURIAM.
Pursuant to a written plea agreement, Francisco Javier Macias-Perez pled guilty
to a drug offense. The district court1 imposed the statutory minimum sentence of 120
months in prison. On appeal, Macias-Perez’s counsel seeks leave to withdraw, and
has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), arguing that
the sentence may be constitutionally defective because it constitutes cruel and
unusual punishment or because it violates due process.

1

The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

Appellate Case: 11-3664

Page: 1

Date Filed: 07/27/2012 Entry ID: 3936365

The written plea agreement contains an appeal waiver, in which (as relevant
here) Macias-Perez waived his right to appeal his sentence and conviction. After
careful de novo review of the record, see United States v. Azure, 571 F.3d 769, 772
(8th Cir. 2009), this court enforces the appeal waiver because Macias-Perez entered
into the plea agreement and appeal waiver knowingly and voluntarily, and no
miscarriage of justice would result from enforcing the waiver. See United States v.
Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (discussing enforceability of
appeal waivers).2 Having reviewed the record independently under Penson v. Ohio,
488 U.S. 75 (1988), within the constraints of the appeal waiver, this court finds no
nonfrivolous issues.
The judgment of the district court is affirmed, and counsel is granted leave to
withdraw.
______________________________

2

Macias-Perez retained the right to appeal a “constitutionally defective”
sentence, but his constitutional challenge is foreclosed by circuit precedent. See
United States v. Turner, 583 F.3d 1062, 1068 (8th Cir. 2009). The other exceptions to the
appeal waiver for a sentence that contravened the plea agreement, or exceeded the
statutory maximum, are not applicable either.
-2-

Appellate Case: 11-3664

Page: 2

Date Filed: 07/27/2012 Entry ID: 3936365