United States of America v. Deonte J. Collins-Abbott

United States Court of Appeals
For the Eighth Circuit
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No. 19-1012
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Deonte J. Collins-Abbott
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: June 1, 2020
Filed: June 4, 2020
[Unpublished]
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Before BENTON, KELLY, and GRASZ, Circuit Judges.
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PER CURIAM.
Deonte Collins-Abbott appeals after he pleaded guilty—pursuant to a Federal
Rule of Criminal Procedure 11(c)(1)(C) plea agreement containing an appeal
waiver—to conspiracy to commit Hobbs Act robbery and a firearm offense under 18
U.S.C. § 924(c)(1)(A); and the district court imposed the agreed-upon prison term.
In a brief filed pursuant to Anders v. California, 386 U.S. 738 (1967), Collins-

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Abbott’s counsel suggests that the appeal waiver is invalid because the First Step Act
of 2018 was enacted three days after Collins-Abbott was sentenced. In pro se briefs,
Collins-Abbott argues that his section 924(c) conviction is invalid under United States
v. Davis, 139 S. Ct. 2319 (2019), and that his prison term is substantively
unreasonable.
As to the issues raised in the briefs, we enforce the appeal waiver. See 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 plea agreement and waiver, and enforcing waiver would not
result in miscarriage of justice). We conclude that the record establishes Collins-
Abbott made a knowing and voluntary choice to enter into the plea agreement and
appeal waiver; and that his choice was not affected by the First Step Act, which was
enacted six months after he entered his guilty plea. Cf. United States v. Gray, 152
F.3d 816, 819-20 (8th Cir. 1998) (guilty plea must be knowing, voluntary, and
intelligent choice among alternative courses of action open to defendant). We further
conclude that Collins-Abbott’s pro se arguments fall within the scope of the appeal
waiver; and that no miscarriage of justice would result from enforcing the appeal
waiver, given that the district court imposed the agreed-upon prison term, which was
within the statutory range. See Andis,333 F.3d at 891-92 (discussing miscarriage-of-
justice exception).
After independently reviewing the record pursuant to Penson v. Ohio, 488 U.S.
75 (1988), we ordered supplemental briefing addressing issues related to a potential
clerical error in the judgment, and the award of restitution to two individuals, G.W.
and N.J. In response, the government concedes that the judgment erroneously
references 18 U.S.C. § 924(c)(1)(C) and that G.W. and N.J. were not entitled to
restitution, and moves to remand this case to the district court for entry of a new
judgment. Based on the relief requested, we construe the government’s motion to
include a motion to vacate the awards of restitution to G.W. and N.J. We grant the
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government’s motion, vacate the awards of restitution to G.W. and N.J., and remand
this case to the district court for entry of a new judgment that does not award
restitution to G.W. or N.J. and that removes any reference to section 924(c)(1)(C). In
all other respects, the judgment is affirmed. All other pending motions are denied.
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