United States v. Thirplus Moose

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, Steven M. Colloton and Jane Kelly (UNPUBLISHED); Granting [4018723-2] motion to withdraw as counsel filed by Ms. Lisa G. Nouri.; Denying [4049211-2] motion to amend appeal filed by Appellant Mr. Thirplus Moose. [4074183] [13-1153]

United States Court of Appeals
For the Eighth Circuit
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No. 13-1153
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Thirplus Moose
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: August 28, 2013
Filed: September 11, 2013
[Unpublished]
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Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
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PER CURIAM.
Thirplus Moose appeals the sentence that the district court1 imposed upon his
guilty plea to conspiracy to commit armed bank robbery and attempted armed bank
1

The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.

Appellate Case: 13-1153

Page: 1

Date Filed: 09/11/2013 Entry ID: 4074183

robbery, to use and carry a firearm during and in relation to a crime of violence, and
to engage in carjacking (Count 1); to armed bank robbery and forcible restraint
(Count 2); and to use or discharge of a firearm during a crime of violence causing
murder (Count 5). Seeking leave to withdraw, Moose’s counsel has filed a brief
under Anders v. California, 386 U.S. 738 (1967), challenging the length of the
sentence because it was imposed at the top of the sentencing range agreed upon by
the parties in their Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement.
Moose has not filed a pro se brief, despite being granted two extensions of time to do
so. He now moves for additional time to “amend” his appeal. We deny the motion.
Moose was told that this court would grant no further extensions of time to file a
brief, and further, he does not specify what issues he would raise.
As to the appeal itself, we note that the plea agreement in this case contains a
waiver of Moose’s right to appeal his conviction and sentence. We will enforce the
appeal waiver, because (1) the argument raised on appeal falls within the scope of the
sentence-appeal waiver, which applies unless the sentence is challenged based on
ineffective assistance of counsel, prosecutorial misconduct, or illegality; (2) the
record reflects that Moose entered into both the waiver and the plea agreement
knowingly and voluntarily; and (3) 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). We have independently reviewed the record under Penson v. Ohio,
488 U.S. 75 (1988), and find no nonfrivolous issues for appeal outside the scope of
the appeal waiver. Accordingly, we grant counsel’s motion, deny Moose’s motion,
and dismiss the appeal.
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Appellate Case: 13-1153

Page: 2

Date Filed: 09/11/2013 Entry ID: 4074183