United States v. Kyle Thomas Soltesz

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Raymond W. Gruender and Duane Benton (UNPUBLISHED); Granting [4022887-2] motion to withdraw as counsel filed by Mr. George E. Grassby. [4073221] [13-1511]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-1511
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kyle Thomas Soltesz
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Rapid City
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Submitted: September 6, 2013
Filed: September 9, 2013
[Unpublished]
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Before WOLLMAN, GRUENDER, and BENTON, Circuit Judges.
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PER CURIAM.
Kyle Thomas Soltesz appeals the bottom-of-the-Guidelines-range sentence
imposed on him by the district court1 after he pled guilty to a drug charge under a

1

The Honorable Jeffrey L. Viken, Chief Judge, United States District Court for
the District of South Dakota.

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written plea agreement. The agreement contained a waiver of the right to appeal all
nonjurisdictional issues, other than a challenge for substantive unreasonableness to
any sentence that was imposed above the Guidelines range, whether by departure or
variance. Citing Anders v. California, 386 U.S. 738 (1967), counsel has moved to
withdraw, and filed a brief arguing as error the court’s failure to award “credit” for
time that Soltesz served in state custody while under a federal detainer, and the court’s
failure to rule on a motion for a departure or variance. He argues that enforcing the
appeal waiver would cause a miscarriage of justice, because at the time that Soltesz
signed the agreement, neither he nor the prosecution contemplated the “credit” issue,
or that the court would fail to rule on an amply supported motion for a downward
departure or variance. He also argues that the district court essentially reinstated
Soltesz’s right to appeal by informing him at the conclusion of the sentencing hearing
that he could appeal his sentence. Soltesz has not filed a pro se supplemental brief.
This court will enforce the appeal waiver. The record made at the plea hearing
reflects that Soltesz entered into the plea agreement and the appeal waiver knowingly
and voluntarily; the appeal waiver applies, because the district court did not vary or
depart above the Guidelines range in sentencing Soltesz; and no miscarriage of justice
will result from enforcing the appeal waiver. See United States v. Andis, 333 F.3d
886, 889- 92 (8th Cir. 2003) (en banc). The court’s statement at the sentencing
hearing about the right to appeal did not invalidate Soltesz’s knowing and voluntary
waiver of appellate rights. See United States v. Michelsen, 141 F.3d 867, 872 (8th Cir.
1998) (any statement by court at sentencing hearing could not have affected prior
decision by defendant to plead guilty and waive appellate rights). The issues
regarding sentencing credit and the perceived failure of the court to rule on the
sentencing motion are not bases for a miscarriage of justice exception. Andis, 333
F.3d at 892 (miscarriage-of-justice exception is narrow, and any sentence imposed
within statutory range is not subject to appeal).

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This court reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988) and
found no nonfrivolous issues outside the scope of the waiver. The appeal is dismissed
based on the appeal waiver, and counsel is granted leave to withdraw.
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