United States v. Travis Oberg

Filing

PER CURIAM OPINION FILED - THE COURT: Lavenski R. Smith, Pasco M. Bowman and Bobby E. Shepherd. --(UNPUBLISHED)-- [4036333-2] The motion for appointment of new counsel, filed by Appellant Mr. Travis D. Oberg, is denied. [3996556-2] The motion to withdraw as counsel, filed by Mr. William Joseph Raymond, is granted subject to counsel informing appellant about procedures for seeking rehearing or filing a petition for certiorari. [4076139] [12-3681]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-3681
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Travis D. Oberg
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: September 6, 2013
Filed: September 17, 2013
[Unpublished]
____________
Before SMITH, BOWMAN, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
Travis Oberg appeals the 100-month prison sentence the district court1 imposed
upon his guilty plea to a wire-fraud charge, in violation of 18 U.S.C. § 1343. His
1

The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.

Appellate Case: 12-3681

Page: 1

Date Filed: 09/17/2013 Entry ID: 4076139

counsel has moved to withdraw and has filed a brief under Anders v. California, 386
U.S. 738 (1967). Oberg pleaded guilty pursuant to a plea agreement, the
recommendations in which did not bind the court, and which contained a waiver of
his right to appeal his conviction and sentence. He has filed a pro se supplemental
brief arguing that the waiver should not be enforced because the court did not
“accept” the parties’ agreement to a particular sentencing range. He also moves for
new counsel.
After carefully reviewing the record, we will enforce the appeal waiver here.
Although the court did not personally address Oberg about the waiver of the right to
appeal his sentence, contrary to the requirement of Federal Rule of Criminal
Procedure 11(b)(1)(N), we conclude that the error did not affect his substantial rights,
because the record demonstrates that he entered into both the waiver and the
agreement knowingly and voluntarily. At the time of his plea, Oberg was a 44-yearold high school graduate whose first language was English, and who had operated a
sophisticated fraudulent business scheme; at no time did he contend--below or on
appeal--that he did not understand he was waiving his appellate rights. See United
States v. Michelson, 141 F.3d 867, 871-72 (8th Cir. 1998) (standard of review;
examining personal characteristics of defendant and circumstances surrounding plea
agreement when assessing knowledge and voluntariness of waiver). Although his pro
se brief might be read to suggest that he did not enter into the plea agreement
knowingly and voluntarily because he thought the agreement guaranteed a certain
sentencing range, the plain language of the agreement (which Oberg testified he had
read and understood) does not support such an interpretation: the agreement states
clearly and repeatedly that Oberg understood that the court could impose any
sentence authorized by law and would not be bound by the parties’ estimate or
recommendation. See United States v. Selvy, 619 F.3d 945, 950 (8th Cir. 2010)
(because plea agreement could not be fairly read as defendant asserted, finding he
entered into agreement and appeal waiver knowingly and voluntarily).

-2-

Appellate Case: 12-3681

Page: 2

Date Filed: 09/17/2013 Entry ID: 4076139

We also conclude that this appeal falls within the scope of the waiver, and that
no miscarriage of justice would result from enforcing it. See United States v.
Jennings, 662 F.3d 988, 990 (8th Cir. 2011), cert. denied, 132 S. Ct. 2407 (2012).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we have found no nonfrivolous issues for appeal beyond the scope of the
waiver. Accordingly, we dismiss the appeal, deny Oberg’s motion for new counsel,
and grant counsel’s motion to withdraw, subject to counsel informing appellant about
procedures for seeking rehearing or filing a petition for certiorari.
______________________________

-3-

Appellate Case: 12-3681

Page: 3

Date Filed: 09/17/2013 Entry ID: 4076139