United States v. Lance Hack, (8th Cir. 2002)

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United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 01-3163

United States of America, Appellee, v. Lance Hack, Appellant.

Submitted: March 5, 2002 Filed: March 13, 2002

Before HANSEN, Chief Judge, WOLLMAN, and BYE, Circuit Judges.

PER CURIAM.

Lance Hack appeals the sentence imposed by the district court1 upon his guilty plea to bank robbery, in violation of 18 U.S.C. § 2113(a). Pursuant to Anders v. California, 386 U.S. 738 (1967), counsel has moved to withdraw and filed a brief raising three issues: (1) the district court erred in not granting Hack§ 851 concerning theprior convictions that were the basis for HackÂ’s career-offender enhancement. In a pro se brief, Hack joins counsel in arguing error based on the lack of notice under section 851.

Initially, we find that Hack waived his right to appeal the district courtÂ’s downward-departure ruling (to the limited extent a district courtÂ’s refusal to depart is reviewable). HackÂ’s plea agreement contains a waiver of his right to appeal his sentence, directly or collaterally, on any ground except for an upward departure by the sentencing judge, a sentence in excess of the statutory maximum, or a sentence in violation of the law apart from the Guidelines. At the change-of-plea hearing, the district court inquired whether Hack had read and understood the plea agreement and reviewed the appeal waiver with him. See United States v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam) (enforcing appeal waiver in Anders case without motion from government); United States v. Morrison, 171 F.3d 567, 568 (8th Cir. 1999) (appeal waiver enforced where, inter alia, its language was clear, and sentence imposed was not contrary to plea agreement).

Because the other two issues raised on appeal involve alleged violations by the government of the plea agreement and statutory requirements, we address these issues; however, they are without merit. First, the government did not violate the plea agreement by failing to dispute the recommended career-offender enhancement: the plea agreement specifically stated that the partiesÂ’ sentencing calculations, stipulations, and estimates did not bind the court, and the plea agreement did not obligate the government to assist Hack in disputing an unfavorable sentencing calculation reached by the probation office or the court. Cf. United States v. Romsey, 975 F.2d 556, 558 (8th Cir. 1992) (carefully-worded plea agreement preserved governmentÂ’s discretion not to file downward-departure motion). Second, section 851 notice procedures do not apply to the GuidelinesÂ’ career-offender provisions. See United States v. Abanatha, 999 F.2d 1246, 1251 (8th Cir. 1993), cert. denied, 511 U.S. 1035 (1994).

Appeal from the United States

District Court for the

Western District of Missouri.

[UNPUBLISHED]

Having reviewed the record independently pursuant to Penson v. Ohio, 488 U.S. 75 (1988), we find no nonfrivolous issues.

Accordingly, we affirm, and we grant counselÂ’s motion to withdraw.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

[1] The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri.

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