United States v. Canton Kimbrell

Filing

PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Steven M. Colloton and Duane Benton (UNPUBLISHED); [4095845-2] Granting motion to withdraw as counsel filed by Mr. Steven Eugene Ort, subject to counsel informing appellant about the procedures for seeking rehearing from this court and for filing a petition for a writ of certiorari. [4151835] [13-2821]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-2821
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Canton Kimbrell
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: April 17, 2014
Filed: May 8, 2014
[Unpublished]
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Before MURPHY, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Canton Travon Kimbrell directly appeals the sentence the district court1
imposed after he pled guilty to conspiring to distribute heroin, in violation of 21

1

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

Appellate Case: 13-2821

Page: 1

Date Filed: 05/08/2014 Entry ID: 4151835

U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. In the plea agreement, Kimbrell waived the
right to appeal his conviction and sentence, except for claims of ineffective assistance
of counsel, or a sentence that was not in accordance with the plea agreement, exceeded
the maximum statutory penalty, or was constitutionally defective. Counsel has filed
a brief under Anders v. California, 386 U.S. 738 (1967), and a motion to withdraw.
Kimbrell has filed a pro se supplemental brief.
After carefully reviewing the record and briefs, this court holds the appeal
waiver is valid and shall be enforced. See United States v. Scott, 627 F.3d 702, 704
(8th Cir. 2010) (standard of review); United States v. Andis, 333 F.3d 886, 889-90 (8th
Cir. 2003) (en banc) (appeal-waiver rule). Contrary to Kimbrell’s argument, the
government did not breach the plea agreement. While the government agreed that
Kimbrell had timely notified authorities of his intention to plead guilty for purposes
of U.S.S.G. § 3E1.1(b), it made no agreement as to whether an acceptance-ofresponsibility reduction under section 3E1.1(a) should apply, and it retained the right
to litigate other sentencing issues. And because the plea agreement did not mandate
an acceptance-of-responsibility reduction, the resulting sentence was in accordance
with the agreement. Kimbrell’s appeal falls within the scope of the waiver, and none
of the appeal-waiver exceptions apply. The record shows that Kimbrell knowingly
and voluntarily entered into the plea agreement and appeal waiver and that no
miscarriage of justice would result from enforcing the waiver. See United States v.
Bahena, 223 F.3d 797, 806-07 (8th Cir. 2000) (where defendant stated under oath at
plea hearing that he understood plea agreement and proceedings, was satisfied with
counsel, and had committed crimes alleged in indictment, his later conclusory claim
that he did not understand rang hollow); Andis, 333 F.3d at 891-92 (outlining narrow
miscarriage-of-justice exception).
The appeal is dismissed. Counsel’s motion to withdraw is granted, subject to
counsel informing appellant about the procedures for seeking rehearing from this
court and for filing a petition for a writ of certiorari.
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-2Appellate Case: 13-2821

Page: 2

Date Filed: 05/08/2014 Entry ID: 4151835