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The Honorable Gary A. Fenner, United States District Judge for the Western

District of Missouri. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3784

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Jeffrey M. Lee, *

* [UNPUBLISHED]

Appellant. *

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Submitted: October 6, 2005

Filed: November 14, 2005

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Before BYE, McMILLIAN, and RILEY, Circuit Judges.

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PER CURIAM.

Jeffrey M. Lee (Lee) appeals the judgment the district court1

 entered after he

pled guilty to knowingly making a false and fictitious written statement in connection

with the acquisition of a firearm on November 26, 2001, after having been convicted

of a felony, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2). His counsel has

moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967),

arguing Lee “did not have [the] benefit of” Blakely v. Washington, 124 S. Ct. 2531
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(2004), when entering into the plea agreement. Counsel avers the district court erred

under Blakely in imposing an obstruction of justice enhancement on the basis of

judicial factfinding. 

Lee executed a written plea agreement, in which he agreed to waive his right

to “appeal or otherwise challenge the constitutionality or legality of the Sentencing

Guidelines,” and expressly waived the right to appeal or attack collaterally “all issues

in this matter, including but not limited to issues relating to any departures by the

District Court, any Guideline issue, and any sentence imposed in this matter” except

in the case of a sentence in excess of the statutory maximum. 

We enforce this appeal waiver, because no miscarriage of justice would result:

Lee indicated his plea was voluntary and knowing, and the district court properly

questioned Lee about the decision to enter the agreement and to waive his right to

appeal the covered issues; and Lee’s sentence is consistent with the plea agreement.

See United States v. Andis, 333 F.3d 886, 889-91 (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; one important way district court can

ensure plea agreement and appeal waiver are knowing and voluntary is to properly

question defendant about decision to enter agreement and to waive right to appeal).

Additionally, we previously have confirmed a valid appeal waiver would encompass

any claims of error under United States v. Booker, 125 S. Ct. 738 (2005). See United

States v. Reeves, 410 F.3d 1031, 1034-35 (8th Cir. 2005) (unless expressly reserved,

right to appellate relief under Booker is among rights waived by valid appeal waiver;

plea prior to Booker is not rendered involuntary or unintelligent simply because

implications of holding were not known at time of plea), petition for cert. filed (U.S.

Sept. 7, 2005) (No. 05-6322). 
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 Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,

80 (1988), we find no nonfrivolous issues falling outside the scope of the appeal

waiver. Accordingly, we dismiss the appeal and grant counsel’s motion to withdraw.

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