United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-4196

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Mario M. Martinez, Sr., *

* [UNPUBLISHED]

Appellant. *

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Submitted: January 15, 2007 

Filed: January 22, 2007

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Before MURPHY, BEAM, and COLLOTON, Circuit Judges.

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PER CURIAM.

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. We denied counsel’s motion and

ordered supplemental briefing as to whether Martinez had waived his right to appeal
1

The Honorable Joseph F. Bataillon, Chief Judge, United States District Court

for the District of Nebraska.

-2-

his sentence based on United States v. Booker, 543 U.S. 220 (2005), in light of the

district court’s1

 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, we dismiss the appeal based

on the broad appeal waiver included in Martinez’s 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). 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. See, e.g., United States v.

Reeves, 410 F.3d 1031, 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). Finally, we conclude no injustice would result

from enforcing the waiver. To the extent the Anders brief suggests that the plea or the

waiver is invalid because of counsel’s ineffectiveness, we note that the record is not

sufficiently developed on the issue, and any such claim should be pursued under 28

U.S.C. § 2255. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003). 

Accordingly, we dismiss the appeal.

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