Pursuant to
the following 8th Circuit Court of Appeals rule, unpublished
opinions issued after 01/01/07 may now be cited.
RULE
32.1 A:CITATION OF
UNPUBLISHED OPINIONS
Unpublished
opinions are decisions which a court designates for unpublished
status. They are not precedent. Unpublished opinions issued on or
after January 1, 2007, may be cited in accordance with FRAP 32.1.
Unpublished opinions issued before January 1, 2007, generally should
not be cited. When relevant to establishing the doctrines of res
judicata, collateral estoppel, or the law of the case, however,
the parties may cite any unpublished opinion. Parties may also cite
an unpublished opinion of this court if the opinion has persuasive
value on a material issue and no published opinion of this or another
court would serve as well. A party citing an unpublished opinion
in a document or for the first time at oral argument which is not
available in a publically accessible electronic database must attach
a copy thereof to the document or to the supplemental authority
letter required by FRAP 28(j). When citing an unpublished opinion,
a party must indicate the opinion's unpublished status.
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The
8th Circuit Court of Appeals here concludes via precedent
that a plea agreement which included a waiver of appeal of conviction
or sentence is valid.
United
States v. Mario Martinez[UNPUBLISHED]
Elaw
Headnotes (Not Prepared by Court)
Appeal
and Error:
-
[Plea Agreement:]See
United States v. Andis, 333 F.3d 886,889-92 (8th Cir. 2003)
(en banc) (court should enforce appeal waiver and dismiss appeal
where it falls within scope of waiver, both plea agreement and waiver
were entered into knowingly and voluntarily, and no miscarriage
of justice would result).
-
[Booker]See, e.g., United
States v. Reeves, 410F.3d1031,1034 (8th Cir.) (right to appeal
under Booker is
among rights waived by broad appeal waiver even where parties did
not anticipate Booker
ruling), cert. denied,
126 S. Ct. 469 (2005).
Date
Filed and Case No.: January 22, 2007 No. 04-4196
Parties:
United States of America, Appellee. Mario M. Martinez, Sr., Appellant.
Court
Appealed From: United States District Court for the District
of Nebraska, Joseph F. Bataillon, Chief Judge, United States District
Court for the District of Nebraska.
Judges
on Panel: Murphy, Beam, and Colloton, Circuit Judges.
Authored
By: Per Curiam.
Summary:
Mario M. Martinez, Sr., pleaded guilty to conspiring to distribute
and possess with intent to distribute methamphetamine, in violation
of 21 U.S.C. § 846. His written plea agreement contained a
provision under which Martinez generally waived his right to appeal
his conviction or sentence, reserving his right to seek habeas relief
for ineffective assistance of counsel; and a separate specific waiver
pursuant to which he agreed to have his sentence determined under
the Sentencing Guidelines and to waive all constitutional challenges
to their validity. On appeal, counsel moved to withdraw and filed
a brief under Anders v.
California, 386 U.S. 738 (1967), asserting that Martinez's
trial counsel had been ineffective. The 8th Circuit Court
of Appeals denied counsel's motion and ordered supplemental briefing
as to whether Martinez had waived his right to appeal his sentence
based on United States
v. Booker, 543 U.S. 220 (2005), in light of the district
court's plea-hearing comment questioning the validity of the Guidelines
waiver; and, if the issue was not waived, whether the court's application
of the Guidelines as mandatory warranted relief under Booker.
Upon
reviewing the parties' supplemental briefs, the 8th Circuit dismissed
the appeal based on the broad appeal waiver included in Martinez's
plea agreement. “The plea colloquy reflects that Martinez
understood and voluntarily accepted the terms of the plea agreement,
including the broad waiver provision. This appeal - including any
Booker challenge
to the mandatory application of the Guidelines - falls within the
scope of the broad waiver, regardless of the separate Guidelines
waiver which the district court questioned” said the Court.
The Court concluded no injustice would result from enforcing the
waiver. To the extent the Anders
brief suggested that the plea or the waiver is invalid because of
counsel's ineffectiveness, the 8thCircuit noted that
the record was not sufficiently developed on the issue, and any
such claim should be pursued under 28 U.S.C. § 2255. APPEAL
DISMISSED.
As appellants
presented no basis for the reversal of a grant of a summary judgment
against them.
Comcast
of IL X v. Thomas M. Abboud [UNPUBLISHED]
Elaw
Headnotes (Not Prepared by Court)
Appeal
and Error:
- [Summary
Judgment](Standard of Review:)see
Iowa Network Servs., Inc. v. Qwest Corp., 466 F.3d 1091,1094
(8th Cir. 2006) (summary judgment standard of review),
Date
Filed and Case No.: January 8, 2007 Nos. 05-3684, 05-3739
Parties:
Comcast, of Illinois X, LLC, An Illinois Limited Liability Company,
Appellee. TKA Electronics, Inc., Defendant. Thomas Abboud, individually,
Appellant. Cathy Vigneri, individually; Kim Abboud, individually;
Raymond Vigneri, individually; Terry Abboud, individually, Defendants.
Court
Appealed From: United States District Court for the District
of Nebraska, Joseph F. Bataillon, Chief Judge, United States District
Court for the District of Nebraska.
Judges
on Panel: Murphy, Bye, and Melloy, Circuit Judges.
Authored
By: Per Curiam.
Summary:In these consolidated cases, Thomas
Abboud and Raymond and Cathy Vigneri appealed the district court's
adverse grant of summary judgment in an action brought against them
under 47 U.S.C. § 553(c). The 8th Circuit Court of
Appeals ruled that because they provided no basis for reversal, it
affirmed pursuant to 8th Cir. R. 47B. AFFIRMED
