United States v. Todd Tingelhoff

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Diana E. Murphy and Lavenski R. Smith (UNPUBLISHED); [4096614-2]Granting motion to withdraw as counsel filed by Mr. Jeffrey Louis Thomas, with conditions. [4135629] [13-3290]

United States Court of Appeals
For the Eighth Circuit
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No. 13-3290
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Todd Tingelhoff
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: February 21, 2014
Filed: March 20, 2014
[Unpublished]
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Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.
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PER CURIAM.
Todd Tingelhoff directly appeals the within-Guidelines-range sentence
imposed by the district court1 after he pleaded guilty to a drug offense. On appeal,
1

The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.

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Date Filed: 03/20/2014 Entry ID: 4135629

counsel for Tingelhoff seeks to withdraw, and has filed a brief under Anders v.
California, 386 U.S. 738 (1967), noting that Tingelhoff entered into a written plea
agreement containing an appeal waiver and arguing that the sentence is substantively
unreasonable.
After careful de novo review, we conclude that the appeal waiver is valid and
should be enforced. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (de
novo review of validity and applicability of appeal waiver). The appeal waiver
contained in the written plea agreement stated that Tingelhoff waived any and all
rights to appeal his conviction and sentence, he made statements under oath at his
plea hearing verifying that he had entered into the plea agreement and the appeal
waiver knowingly and voluntarily, and we conclude that no miscarriage of justice
would result from enforcing the appeal waiver. See United States v. Andis, 333 F.3d
886, 889-92 (8th Cir. 2003) (en banc) (court should enforce appeal waiver and
dismiss appeal where it falls within scope of waiver, plea agreement and waiver were
entered into knowingly and voluntarily, and no miscarriage of justice would result;
miscarriage-of-justice exception is narrow); see also Nguyen v. United States, 114
F.3d 699, 703 (8th Cir. 1997) (defendant’s statements made during plea hearing carry
strong presumption of verity).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no non-frivolous issues outside the scope of the appeal waiver.
Therefore, we grant counsel’s motion to withdraw, subject to his informing
Tingelhoff about procedures for seeking rehearing or filing a petition for certiorari,
and we dismiss the appeal.
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Date Filed: 03/20/2014 Entry ID: 4135629