                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0296n.06

                                           No. 09-6410

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                      FILED
                                                                                     Mar 15, 2012
UNITED STATES OF AMERICA,                            )                         LEONARD GREEN, Clerk
                                                     )
       Plaintiff-Appellee,                           )       ON APPEAL FROM THE
                                                     )       UNITED STATES DISTRICT
v.                                                   )       COURT FOR THE EASTERN
                                                     )       DISTRICT OF KENTUCKY
RONALD PALMER,                                       )
                                                     )               OPINION
       Defendant-Appellant.                          )
                                                     )




       BEFORE: COLE and STRANCH, Circuit Judges; CARR, District Judge.*


       PER CURIAM. Ronald Palmer appeals his conviction and sentence. His counsel moves to

withdraw under Anders v. California, 386 U.S. 738 (1967). We grant counsel’s motion to withdraw

and dismiss the appeal based on the appellate waiver provision of Palmer’s plea agreement.

       In 2008, Palmer was indicted on six counts related to his involvement in two bank robberies.

Palmer agreed to plead guilty to counts two and five, which charged him with aiding and abetting

the use or brandishing of a firearm during and in relation to a crime of violence in violation of 18

U.S.C. §§ 2 and 924(c)(1), and the government agreed to dismiss the remaining counts. The parties

agreed that Palmer’s mandatory minimum terms of imprisonment were seven years on count two and

twenty-five years on count five. See 18 U.S.C. § 924(c)(1)(A)(ii), (C)(i).



       *
         The Honorable James G. Carr, United States District Judge for the Northern District of Ohio,
sitting by designation.
No. 09-6410
United States v. Palmer

       In October 2009, approximately six months after the plea hearing, Palmer filed a motion to

withdraw his guilty plea, asserting that he entered his plea “out of sheer fear and desperation” and

that he did not process information well because of a prior brain injury. The district court denied the

motion and sentenced Palmer to the mandatory minimum terms of imprisonment of seven years and

twenty-five years, to be served consecutively, and five years of supervised release.

       On appeal, Palmer’s counsel filed a brief and a motion to withdraw as appellate counsel. See

Anders, 386 U.S. at 744. Counsel asserts that there are no non-frivolous issues to raise on appeal

because Palmer entered a valid waiver of his right to appeal and did not preserve any objections to

his sentence. Counsel does identify one potential argument – that the district court lacked subject

matter jurisdiction over the bank robbery charges – but concludes that it lacks merit. Palmer has

responded to the Anders brief with a request for the appointment of new counsel to consult with him

on “issues of merit to raise in this appeal,” although Palmer provides no indication of what these

issues may be. The government has filed a motion to dismiss the appeal based on the appellate

waiver provision.

       We conclude that Palmer validly waived his right to appeal his conviction and sentence. The

plea agreement contained the following waiver provision: “The Defendant waives the right to appeal

and the right to attack collaterally the guilty plea, conviction, and sentence, including any order of

restitution.” An appeal waiver will be enforced when the record reflects that it was understood by

the defendant and was entered into knowingly and voluntarily, see United States v. Sharp, 442 F.3d

946, 950-51 (6th Cir. 2006), and the guilty plea itself is knowing and voluntary, see United States

v. Webb, 403 F.3d 373, 378 n.1 (6th Cir. 2005).




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No. 09-6410
United States v. Palmer

       The district court complied with the requirements of Federal Rule of Criminal Procedure 11

and properly determined that Palmer knowingly and voluntarily entered his guilty plea. In doing so,

the district court determined that Palmer understood the appellate waiver provision. At the plea

hearing, the government’s attorney summarized the plea agreement, 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 challenge [his] conviction or [his] sentence.” The district court

asked Palmer whether he understood the waiver provision, and Palmer stated that he did.

Accordingly, because we find Palmer knowingly and voluntarily agreed to the appellate waiver

provision, that provision now bars Palmer from challenging his conviction and sentence on appeal.

See United States v. McGilvery, 403 F.3d 361, 362-63 (6th Cir. 2005). The waiver provision also

encompasses any challenge to the district court’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. Feb. 6, 2012) (“[A]n

appeal of the denial of a motion to withdraw a guilty plea is an attack on the conviction subject to

an appeal waiver provision.”).

       Because counsel’s Anders brief is adequate and our independent review of the record reveals

no non-frivolous basis on which to challenge Palmer’s conviction and sentence, we grant the motion

to withdraw, deny the request to appoint new counsel, and dismiss the appeal based on the appellate

waiver provision.




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