United States of America v. Dre Red Feather

United States Court of Appeals
For the Eighth Circuit
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No. 23-2911
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United States of America
Plaintiff - Appellee
v.
Dre Red Feather
Defendant - Appellant
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No. 23-2914
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United States of America
Plaintiff - Appellee
v.
Dre Red Feather
Defendant - Appellant
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Appeals from United States District Court
for the District of South Dakota - Western
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Submitted: January 31, 2024
Filed: February 7, 2024
[Unpublished]
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Before BENTON, KELLY, and STRAS, Circuit Judges.
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PER CURIAM.
After pleading guilty in two consolidated cases, Dre Red Feather received a
96-month prison sentence for assault with a dangerous weapon, 18 U.S.C.
§§ 113(a)(3), 1153(a), and a consecutive 77-month prison sentence for assault on a
federal officer, id. § 111(a). In his plea agreements, he waived the right to appeal
all non-jurisdictional issues, except for, as relevant here, the substantive
reasonableness of any upward variance. An Anders brief suggests that the district
court1 procedurally and substantively erred when it ordered him to serve the
sentences consecutively. See Anders v. California, 386 U.S. 738 (1967).
The appeal waiver, which is enforceable, covers the procedural challenge. See
United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (reviewing the validity of
an appeal waiver de novo); United States v. Andis, 333 F.3d 886, 889–92 (8th Cir.
2003) (en banc) (explaining that an appeal waiver will be enforced if the appeal falls
within its scope, the defendant knowingly and voluntarily entered into the plea
agreement and the waiver, and enforcing the waiver would not result in a miscarriage
of justice). We assume the consecutive sentences are substantively reviewable as an
upward variance, see generally U.S.S.G. § 5G1.2, but nevertheless conclude that the
total length is reasonable. In setting it, the district court sufficiently considered the
statutory sentencing factors, 18 U.S.C. §§ 3553(a), 3584(a)–(b), and did not rely on
an improper factor or commit a clear error of judgment. See United States v. Poe,
764 F.3d 914, 916 (8th Cir. 2014) (discussing the standard of review); United States
v. Richart, 662 F.3d 1037, 1054 (8th Cir. 2011) (explaining that a simple
disagreement with how the district court weighed the relevant factors does not justify
reversal).
1 The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota, now retired.

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Finally, we have independently reviewed the record and conclude that no
other non-frivolous issues exist. See Penson v. Ohio, 488 U.S. 75, 82–83 (1988).
We accordingly affirm in part, dismiss the procedural challenge, grant counsel
permission to withdraw, and deny the motion to appoint new counsel as moot.
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