Submitted: April 3, 2017
from United States District Court for the District of
Nebraska - Omaha
COLLOTON, BEAM, and BENTON, Circuit Judges.
COLLOTON, Circuit Judge.
Seizys pleaded guilty to the robbery of a Kentucky Fried
Chicken restaurant with the use of a firearm, in violation of
18 U.S.C. §§ 924(c) and 1951, and the robbery of a
Subway sandwich shop, in violation of § 1951. Seizys
signed a plea agreement, in accordance with Federal Rule of
Criminal Procedure 11(c)(1)(C), in which the parties agreed
to a sentence of 348 months' imprisonment. Seizys also
waived his right to appeal in certain respects. The district
court accepted Seizys's guilty plea, but
withheld its acceptance of the plea agreement until it
reviewed the presentence investigation report.
sentencing, Seizys's counsel moved to withdraw because
Seizys wanted to proceed pro se. Seizys also sent a
letter to the court requesting to withdraw his guilty plea.
The court addressed the motion and the letter at Seizys's
sentencing hearing. Seizys's counsel explained that he
wanted to withdraw because Seizys's only opportunity to
attack his guilty plea was to argue that his counsel was
ineffective. Seizys explained that he wanted to withdraw his
plea based on ineffective assistance of counsel because his
attorney became too emotionally involved in the case. He also
denied that he robbed the Kentucky Fried Chicken, and said
that he agreed to plead guilty out of panic.
court concluded that counsel was effective and that Seizys
acknowledged his guilt at his change-of-plea hearing. The
court therefore denied Seizys's request to withdraw his
plea. The court noted for the record that it accepted
Seizys's plea agreement, and sentenced Seizys consistent
with its terms. Seizys appeals, arguing that he should have
been allowed to withdraw his plea because he did not rob the
Kentucky Fried Chicken and he entered into the plea agreement
out of panic.
government contends that Seizys waived his right to appeal
the court's ruling on his motion to withdraw the guilty
plea. Generally, a defendant may waive his appellate rights
in a plea agreement. So long as there is no miscarriage of
justice, we will enforce a defendant's waiver if the
appeal falls within the scope of the waiver and the defendant
entered into the waiver and the plea agreement knowingly and
voluntarily. United States v. Andis, 333 F.3d 886,
889-90 (8th Cir. 2003) (en banc).
review the validity of an appellate waiver de novo.
United States v. Sisco, 576 F.3d 791, 795 (8th Cir.
plea agreement includes the following waiver: "The
defendant hereby knowingly and expressly waives any and all
rights to appeal the defendant's conviction and sentence,
. . . including a waiver of all motions, defenses, and
objections which the defendant could assert to the charges or
to the Court's entry of Judgment against the defendant,
" except for a claim of ineffective assistance of
counsel. Seizys does not bring an
ineffective-assistance-of-counsel claim, and his appeal thus
falls within the scope of his waiver.
record establishes that Seizys's waiver was knowing and
voluntary. At the change-of-plea hearing, Seizys confirmed
that he had read the agreement and discussed it with his
lawyer. After the government summarized the plea agreement,
and explained that it included an appeal waiver and prevented
Seizys from withdrawing his guilty plea, Seizys acknowledged
that the summary fairly described his agreement. Seizys also
stated that he voluntarily signed the plea agreement, that he
had no questions about it, and that no one threatened him to
cause him to sign it.
claims that he is actually innocent of the Kentucky Fried
Chicken robbery, but makes no strong showing in support of
that contention that might establish a miscarriage of
justice. Cf. United States v.
Torres-Oliveras, 583 F.3d 37, 43 (1st Cir. 2009). Seizys
admitted in his petition to enter a plea of guilty that he
robbed the restaurant with the use of a firearm, and he
stated at his change-of-plea hearing that the government
could prove his guilt beyond a reasonable doubt. Seizys did
not object to factual statements in his presentence
investigation report that the government tracked his location
through a global positioning device and showed him at the
Kentucky Fried Chicken when the robbery occurred. His naked
claim of innocence in a motion to withdraw the plea does not
justify avoiding the appeal waiver.
these reasons, Seizys waived his right to appeal the district
court's order denying his motion to withdraw the guilty
plea. The judgment ...