United States of America v. Simon L. Wertenberger

United States Court of Appeals
For the Eighth Circuit
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No. 24-1542
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United States of America
Plaintiff - Appellee
v.
Simon L. Wertenberger
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 30, 2024
Filed: October 3, 2024
[Unpublished]
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Before BENTON, KELLY, and ERICKSON, Circuit Judges.
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PER CURIAM.
Simon L. Wertenberger appeals the district court’s1 denial of his second
motion to withdraw his guilty plea. Having jurisdiction under 28 U.S.C. § 1291, this
court affirms.
1 The Honorable David Gregory Kays, United States District Judge for the
Western District of Missouri.

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-2-
Counsel moved for leave to withdraw and filed a brief under Anders v.
California, 386 U.S. 738 (1967), arguing that Wertenberger established fair and just
reasons to withdraw his guilty plea. See United States v. Ramirez-Hernandez, 449
F.3d 824, 826 (8th Cir. 2006) (district court may permit withdrawal of guilty plea if
there is a fair and just reason for the withdrawal).
Upon careful review, this court declines to enforce the appeal waiver, and
concludes that the district court did not abuse its discretion in denying the motion to
withdraw the guilty plea. See United States v. Scott, 627 F.3d 702, 704 (8th Cir.
2010) (de novo review of validity and applicability of appeal waiver); Ramirez-
Hernandez, 449 F.3d at, 826 (denial of motion to withdraw guilty plea reviewed for
abuse of discretion; even if fair and just reason for withdrawal exists, court must also
consider whether defendant asserts his innocence of charge, length of time between
guilty plea and motion to withdraw it, and whether government will be prejudiced if
court grants motion). This court has independently reviewed the record under
Penson v. Ohio, 488 U.S. 75 (1988), and has found no non-frivolous issues for
appeal.
The judgment is affirmed, and counsel’s motion to withdraw is granted.
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