United States of America v. Ortez Jones

United States Court of Appeals
For the Eighth Circuit
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No. 24-1052
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Ortez Jones
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: July 29, 2024
Filed: August 1, 2024
[Unpublished]
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Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
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PER CURIAM.
Ortez Jones appeals the sentence the district court1 imposed after he pleaded
guilty to a firearm offense pursuant to a written plea agreement containing an appeal
1The Honorable Matthew T. Schelp, United States District Judge for the
Eastern District of Missouri.

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waiver. His counsel has moved for leave to withdraw, and has filed a brief under
Anders v. California, 386 U.S. 738 (1967).
Upon careful review, we conclude that the appeal waiver is valid, applicable,
and enforceable. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010)
(reviewing de novo the validity and applicability of an appeal waiver). The record
reflects that Jones entered into the plea agreement and appeal waiver knowingly and
voluntarily, and enforcing the waiver will not result in a miscarriage of justice. See
United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (discussing
the enforceability of appeal waivers). Further, we have independently reviewed the
record under Penson v. Ohio, 488 U.S. 75 (1988). We note that, subsequent to
briefing in this case, the United States Supreme Court decided Erlinger v. United
States, 144 S. Ct. 1840 (2024), holding that a jury must determine if offenses were
committed on separate occasions for purposes of an enhancement under the Armed
Career Criminal Act (ACCA). However, Jones waived any argument under Erlinger
when he withdrew his objection to the ACCA enhancement based on United States
v. Stowell, 82 F.4th 607 (8th Cir. 2023). See United States v. Washington, 727 Fed.
Appx. 779, 780 (4th Cir. 2018) (unpublished per curiam) (finding defendant waived
any argument on whether his prior convictions were properly counted as separate
offenses for purposes of ACCA enhancement, as he withdrew his objection to the
issue at sentencing); United States v. Rodriguez, 311 F.3d 435, 436-37 (1st Cir. 2002)
(finding that defendant waived his objection to the predicate offenses supporting his
career offender status by withdrawing the objection at sentencing). Otherwise, we
find no non-frivolous issues for appeal falling outside the scope of the appeal waiver.
Accordingly, we dismiss this appeal based on the appeal waiver, and we grant
counsel’s motion to withdraw.
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