NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0296n.06 No. 09-6410 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. RONAL D PAL MER, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF KENTUCKY OP INION

BEF ORE: COL E and STRANCH, Circuit J udg es; CARR, Dist rict Judge. *

PER CURI AM. Ronald Palmer appea ls his conviction and sentenc e. His counsel moves to withdraw under Anders v. Calif ornia , 386 U.S. 738 (1967). We g rant counsel’s motion to withdraw and dismiss the appea l based on the a ppellate wa iver provision of Palmer ’s plea a g ree ment. I n 2008, Palmer was indicted on six counts rela ted to his involvement in two bank robber ies. Palmer agr eed to plead guilty to counts two and five , which cha rg ed him with aiding and abetting the us e or brandishing of a firea rm during an d in relation to a crime of vi olence in violation of 18 U.S.C. §§ 2 and 924(c) (1), and the g overnme nt ag ree d to dismiss the rema ining counts. The parties ag ree d that Palmer’s mandatory minimum terms of imprisonment wer e seven y ear s on count two and twenty -five year s on count five. See 18 U.S.C. § 924(c)(1) (A)( ii), (C)(i).

The Honora

ble J ames G. Carr, United State s D is tric t J udg e for the Norther n District of Ohio, * sitti ng by desig nation.No. 09-6410

United States v. Palme r I n October 2009, approximately six months afte r the plea hear ing, Palmer filed a motion to withdraw his guilty

plea, a sserting that he ente red his plea “out of shee r fe ar a

nd desper ation” and that he did not proce ss information well beca use of a prior brain injury

. The district court denied the motion and sentenc ed Palmer to the mandatory minimum terms of imprisonment of seven y ear s and twenty -five year s, to be serve d consec utively , and five y ear s of supervise d rele ase. On appea l, Palmer’s counsel filed a brief and a motion to withdraw as appellate counsel. See Anders , 386 U.S. at 744. Counsel asser ts that there are no non-fr ivolous i ssues to raise on appea l beca use Palmer enter ed a valid waiver of his rig ht to appea l and did not prese rve any objections to his sentence . Counsel does identify one potential ar g ument – that the district court lac ked subjec t matter jurisdiction over t h e b an k ro b b ery char g es – but conclude s that it lacks merit. Palmer has responde d to the Anders brief with a reque st for the appointment of new counsel to consult with him

on “iss u es o f m er i t t o raise in this appea l,” althoug h Palmer provides no indication of what these issues may be. The g overnment has filed a motion to dismiss the appea l based on the appellate waiver provision. We conclude that Palmer validly waived his rig ht to appea l his conviction and sentenc e. The plea ag ree ment conta in e d the following waiver provision: “The Def endant waives the rig ht to appea l and the r ight to attac k collater ally the g uilty plea, conviction, and sente nce, inc luding a ny order of restitution.” An appea l w aiver will be enfor ced when the rec ord ref lects that it was understood by the defe ndant and was enter ed into knowing ly and voluntarily , see United States v. Sharp , 442 F.3d 946, 950-51 (6th Cir. 2006), a nd the guilty plea its elf is knowing and voluntary , see U nited States v. W ebb , 403 F.3d 373, 378 n.1 ( 6th Cir. 2005).

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United States v. Palme r The district court complied with the require ments of Fe dera l Rule of Criminal Procedur e 11 and proper ly deter

mined that Palmer knowing ly and voluntarily enter ed his g uilty plea. In doing so, the district court deter

mined that Palmer understood the ap p ell ate waiver provision. At the plea hear ing, the g overnme nt’s attorney summarized the plea ag ree ment, including the waiver provision. The district court then explained the waiver provision in detail, emphasizing that Palmer would not “be able to come back later and challeng e [hi s] conviction or [ h i s ] sentenc e.” The district court asked Palmer whether he understood the waiver provi sion, and Palmer stated that he did. Acc ording ly , beca

use we find Palmer kno wi n gl y an d voluntarily ag ree d to the appellate waiver provision, that provision now bars Palmer from challeng ing his conviction and sentenc e on appea l. See United States v. McGilvery , 403 F.3d 361, 362- 63 (6th Cir. 2005). The w aiver provision also encompa sses any challeng e to the district c ourt’s denial of Palmer’s motion to withdraw his guilty plea. See United States v. Toth , ___ F.3d ___, 2012 WL 360451, at *5 (6th Cir. Fe b. 6, 2012) (“[A]n appea l of the denial of a motion to withdraw a g uilty plea is an a

ttack on the c onviction subject to an appe al waive r provision.”). Be cause counsel’s Anders brief is adequate and our independe nt revie w of the rec ord reve als

no non-fr ivolous basis on which to challeng e Palmer’s conviction and sentenc e, we g rant the motion to withdraw, deny the reque st to appoint new counsel, and dismiss the appea l based on the appellate waiver provision.

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