United States of America v. Francisco A. Magallon, also known as Pancho

United States Court of Appeals
For the Eighth Circuit
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No. 23-1336
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Francisco A. Magallon, also known as Pancho
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Joplin
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Submitted: August 9, 2023
Filed: August 11, 2023
[Unpublished]
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Before GRUENDER, BENTON, and STRAS, Circuit Judges.
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PER CURIAM.
Francisco A. Magallon appeals the Guidelines-range sentence the district
court1 imposed after he pled guilty to a conspiracy drug offense pursuant to a plea
1 The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.

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agreement containing an appeal waiver. Having jurisdiction under 28 U.S.C.
§ 1291, this court dismisses the appeal based on the appeal waiver.
Counsel has moved for leave to withdraw and filed a brief under Anders v.
California, 386 U.S. 738 (1967), acknowledging the appeal waiver, but challenging
the sentence as substantively unreasonable. This court concludes that the appeal
waiver is enforceable. Counsel’s argument falls within the scope of the appeal
waiver, the record shows that Magallon entered into the plea agreement and the
appeal waiver knowingly and voluntarily, and no miscarriage of justice would result
from enforcing the waiver. See United States v. Scott, 627 F.3d 702, 704 (8th Cir.
2010) (de novo review); United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003)
(en banc) (appeal waiver will be enforced if appeal falls within scope of waiver,
defendant knowingly and voluntarily entered into waiver and plea agreement, and
enforcing waiver would not result in miscarriage of justice); see also 18 U.S.C.
§ 841(b)(1)(B) (sentence of 10 years to life in prison).
This court has reviewed the record independently under Penson v. Ohio, 488
U.S. 75 (1988), and has found no non-frivolous issues outside the scope of the appeal
waiver.
The appeal is dismissed, and counsel’s motion to withdraw is granted.
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