                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2025
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                             Christopher Brian Padilla

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                             Submitted: April 20, 2018
                                Filed: May 8, 2018
                                    [Published]
                                  ____________

Before WOLLMAN, LOKEN, and KELLY, Circuit Judges.
                         ____________

PER CURIAM.

       In this direct criminal appeal, Christopher Padilla challenges the sentence the
district court1 imposed after he pleaded guilty to drug and firearms charges. His

      1
        The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.
counsel has moved to withdraw and submitted a brief under Anders v. California, 386
U.S. 738 (1967), addressing whether the sentence was based on procedural error, or
was otherwise substantively unreasonable, and stating there are no non-frivolous
issues, as Padilla was sentenced to the statutory minimum.

       After careful review, we conclude that no plain procedural error occurred, and
any such error would have been harmless because the district court sentenced Padilla
to the statutory minimum, see United States v. Henson, 550 F.3d 739, 740-41 (8th
Cir. 2008); cf. United States v. Chacon, 330 F.3d 1065, 1066 (8th Cir. 2003); and that
the sentence is not subject to review for reasonableness, as it was statutorily imposed,
see United States v. Gregg, 451 F.3d 930, 937 (8th Cir. 2006).

       We have independently reviewed the record under Penson v. Ohio, 488 U.S.
75 (1988), and have found no non-frivolous issues for appeal. With regard to the
issue identified in Judge Kelly’s dissent, a criminal defendant does not have “an
absolute right to have his guilty plea accepted by the court.” Lynch v. Overholser,
369 U.S. 705, 719 (1962). At sentencing, Padilla’s attorney asked if the court would
“allow Mr. Padilla to enter pleas of guilty to Count One and Three, and then if we
would have a trial it would be solely on Count 2.” The government objected, and the
court denied the request. Padilla did not object to that ruling, which was not a plain
error abuse of the district court’s discretion. After a break in the hearing of
approximately seventy five minutes, during which Padilla had ample time to confer
again with his attorney, he returned to court and pleaded guilty to all three counts.
On this record, there is no basis for a claim that Padilla’s guilty plea to all three
counts was not knowing and voluntary, or a claim that the district court denied his
Sixth Amendment right to a jury trial.

      Accordingly, we grant counsel’s motion to withdraw and affirm.




                                          -2-
KELLY, Circuit Judge, dissenting.

       On November 23, 2016, Christopher Padilla came before the district court to
change his plea. During the course of the hearing, the court asked the government to
“establish the factual basis the government would prove if th[e] case were to go to
trial.” Padilla, through his attorney, said he agreed to the factual bases underlying
Counts 1 and 3, but had some reservations regarding Count 2. After further
discussion, Padilla’s attorney asked—because Count 2 had “been the main sticking
point in this case”—if the district court would “still allow Mr. Padilla to enter pleas
of guilty to Count One and Three, and then if we would have a trial it would solely
be on Count Two?” The government objected, and the district court stated, “I’m not
willing to go down that path. I think the charged counts are what he needs to plead
guilty to, and we either need to have a trial or a plea to the indictment as it currently
stands.” Left with those two choices, Padilla then pleaded guilty to all three counts
in the indictment.

       As the court notes, a defendant does not have “an absolute right to have his
guilty plea accepted by the court,” Lynch, 369 U.S. at 719, under certain established
circumstances, see id. (citing Fed. R. Crim. P. 11 (“Before the court accepts a plea of
guilty . . . , the court must inform the defendant of, and determine that the defendant
understands, [his rights, the nature of the charges, and other sentencing
considerations].”)). But based on the plea colloquy here—unlike in Lynch—it
appears Padilla understood the rights he was giving up by pleading guilty, and that
his plea to Counts 1 and 3 would have been knowing and voluntary. Whether a
district court has the discretion to reject a voluntary guilty plea by a competent
defendant—for reasons of judicial efficiency or otherwise—is, in my view, a non-
frivolous issue. Compare United States v. Michel-Galviz, 415 F.3d 946, 948 (8th Cir.
2005) (“[A] district court has broad discretion in deciding to accept or reject a guilty
plea.” (cleaned up)), with id. (“A defendant has no absolute right to plead guilty to
a charge other than that in the indictment.” (emphasis added)), and United States v.

                                          -3-
Carnahan, 684 F.3d 732, 737 (8th Cir. 2012) (“The discretion to reject a tendered
guilty plea is most often exercised when the defendant cannot or will not provide the
adequate factual basis for the plea . . . .”). Because I believe the record supports a
non-frivolous claim for appeal, see Penson, 488 U.S. at 82–84 (1988), I respectfully
dissent. I would deny counsel’s motion to withdraw and order additional briefing on
(1) whether the district court erred in ruling that it would not accept Padilla’s guilty
plea to Counts 1 and 3 if he did not also plead guilty to Count 2 of the indictment; and
(2) whether in doing so, the district court denied Padilla his Sixth Amendment right
to a jury trial on Count 2.
                        ______________________________




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