United States v. Joshua Payne


PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Lavenski R. Smith and Duane Benton (UNPUBLISHED); [4270108-2] Granting motion for appointment of counsel filed by Appellant Mr. Joshua T. Payne; Remaining motions are denied as moot. [4272226-4][4266058-2] [4314074] [15-1223]

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 15-1223 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Joshua T. Payne lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Western District of Missouri - Kansas City ____________ Submitted: September 2, 2015 Filed: September 8, 2015 [Unpublished] ____________ Before WOLLMAN, SMITH, and BENTON, Circuit Judges. ____________ PER CURIAM. Joshua Payne directly appeals after he pleaded guilty to being a felon in possession of a firearm, and the district court1 sentenced him within the Guidelines 1 The Honorable Greg Kays, Chief Judge, United States District Court for the Western District of Missouri. Appellate Case: 15-1223 Page: 1 Date Filed: 09/08/2015 Entry ID: 4314074 range contemplated in his binding plea agreement. His counsel has moved to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967). Payne has filed a pro se supplemental brief in which he challenges the basis for his calculated Guidelines offense level. After careful de novo review, see United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010), we will enforce the appeal waiver that is included in Payne’s written plea agreement, because the claims raised in this appeal fall within the scope of the waiver, Payne’s testimony at the plea hearing shows that he entered into the plea agreement and the appeal waiver knowingly and voluntarily, and dismissing the appeal based on the waiver will not result in a miscarriage of justice, see United States v. Andis, 333 F.3d 886, 889-90 (8th Cir. 2003) (en banc). Further, having independently reviewed the record pursuant to Penson v. Ohio, 488 U.S. 75 (1988), we find no nonfrivolous issues that fall outside the scope of the appeal waiver. Accordingly, we grant counsel’s motion to withdraw, and we deny the remaining pending motions as moot. This appeal is dismissed. ______________________________ -2- Appellate Case: 15-1223 Page: 2 Date Filed: 09/08/2015 Entry ID: 4314074

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