United States of America v. Duane McCoy

United States Court of Appeals
For the Eighth Circuit
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No. 22-2689
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United States of America
Plaintiff - Appellee
v.
Duane McCoy
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: March 24, 2023
Filed: April 11, 2023
[Unpublished]
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Before BENTON, SHEPHERD, and ERICKSON, Circuit Judges.
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PER CURIAM.
Duane McCoy appeals after he pled guilty to drug and firearm offenses,
pursuant to a plea agreement containing an appeal waiver. The district court1
1 The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri.

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sentenced him to 180 months in prison consistent with the plea agreement. 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 has filed a brief under Anders
v. California, 386 U.S. 738 (1967), arguing that the sentence is substantively
unreasonable. In a pro se brief, McCoy challenges the sufficiency of the evidence
supporting his plea to the drug charges, and asserts that the district court plainly
erred in counting a prior drug conviction as a predicate offense for purposes of the
career offender enhancement.
To the extent McCoy’s challenge to the sufficiency of the evidence is a
challenge to the voluntariness of his plea, the claim is not cognizable on direct appeal
because he did not move below to withdraw his guilty plea. See United States v.
Foy, 617 F.3d 1029, 1033-34 (8th Cir. 2010). This court concludes that the appeal
waiver is valid, applicable, and enforceable as to the remaining arguments. See
United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (de novo review of the
validity and applicability of appeal waiver); 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).
This court has reviewed the record independently under Penson v. Ohio, 488
U.S. 75 (1988), and has found no nonfrivolous issues outside the scope of the appeal
waiver.
The appeal is dismissed. Counsel’s motion to withdraw is granted.
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