United States Court of Appeals
For the Eighth Circuit
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No. 16-3475
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
William E. Brown
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: April 5, 2017
Filed: April 18, 2017
[Unpublished]
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Before SHEPHERD, MURPHY, and KELLY, Circuit Judges.
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PER CURIAM.
William Earl Brown directly appeals the sentence imposed by the district court1
after he pleaded guilty to conspiring to distribute cocaine, pursuant to a written plea
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
agreement that contained a waiver of the right to challenge his conviction and
sentence. Brown’s counsel has moved to withdraw, and has filed a brief under
Anders v. California, 386 U.S. 738 (1967). Brown has filed a pro se supplemental
brief, and moves for the appointment of new counsel.
In the Anders brief, counsel argues that Brown’s sentence is unreasonable. We
will enforce the appeal waiver as to this claim, because our review of the record
demonstrates that Brown entered into the plea agreement and the appeal waiver
knowingly and voluntarily; the argument falls within the scope of the appeal waiver;
and 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). Likewise, the appeal
waiver bars our consideration of Brown’s pro se argument that the sentence does not
adequately take into consideration his poor health.
Brown raises ineffective-assistance claims in his pro se submissions, but we
decline to address those claims in this direct criminal appeal. See United States v.
Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir. 2006) (ineffective-assistance
claims are usually best litigated in collateral proceedings). Brown argues, too, that
his sentence violates the Sixth Amendment because the district court calculated drug
quantity based on a preponderance of the evidence, and sentenced him for a quantity
far greater than that to which he pleaded guilty. We will liberally construe this
argument as falling within the appeal waiver’s exception for arguments regarding an
“illegal sentence,” but the argument fails, among other reasons, because Brown
expressly consented in his plea agreement to judicial fact-finding under a
preponderance standard for purposes of sentencing. See Blakely v. Washington, 542
U.S. 296, 310 (2004); United States v. Bledsoe, 445 F.3d 1069, 1072 (8th Cir. 2006).
Finally, having independently reviewed the record under Penson v. Ohio, 488
U.S. 75 (1988), we find no nonfrivolous issues for appeal falling outside the scope
of the appeal waiver. We note, however, that the written judgment reflects a clerical
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error. Specifically, the judgment describes the conviction as arising out of an August
2014 guilty plea to Count 1 of the Second Superseding Indictment, and describes the
offense as conspiracy to distribute 1,000 kilograms or more of marijuana and 5
kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846.
That plea was withdrawn, however, and was replaced by Brown’s February 2016
guilty plea to the lesser-included offense of conspiracy to distribute more than 500
grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846. The district
court accepted that plea. Accordingly, we modify the written judgment to reflect that
the conviction arises out of the February 2016 plea to the lesser-included offense.
See 28 U.S.C. § 2106 (appellate court may modify any judgment brought before it for
review); cf. United States v. James, 792 F.3d 962, 971 (8th Cir. 2015) (where oral
sentence and written judgment conflict, oral sentence controls).
Accordingly, we dismiss this appeal as to those issues barred by the appeal
waiver, as noted above; we otherwise affirm the judgment, as modified; we grant
counsel’s motion to withdraw; and we deny Brown’s motion for new counsel.
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