598 F. App'x 465
8th Cir.
2015
Case Information

*1 Before SMITH, GRUENDER, and BENTON, Circuit Judges.

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PER CURIAM.

Orlando Eric Preston, also known as Nizza P. El, directly appeals the district court’s judgment in his criminal case. After careful review, this court affirms. [1]

*2 Preston pled guilty to conspiring to commit an offense against the United States, mail fraud, and operating a chop shop, in violation of 18 U.S.C. §§ 371, 1341, and 2322. As part of the written plea agreement, he waived the right to appeal “all non-jurisdictional, non-sentencing issues”; and the right to appeal “all sentencing issues other than Criminal History” if the district court adopted the parties’ agreed- upon total offense level and sentenced him within or below the Guidelines range. The court adopted the parties’ agreed-upon total offense level, sentenced Preston below the Guidelines range to 60 months in prison, and ordered him to pay $194,107.93 in restitution to identified victims pursuant to 18 U.S.C. § 3663A. In a brief filed under Anders v. California , 386 U.S. 738 (1967), counsel argues that the restitution amount was excessive. In a pro se pleading, Preston argues that the district court lacked jurisdiction over him, thus his conviction was a miscarriage of justice.

The appeal waiver precludes counsel’s challenge to the restitution amount. See United States v. Andis , 333 F.3d 886, 889-90 (8th Cir. 2003) (en banc) (appeal-waiver rule). The restitution issue falls within the scope of the waiver, see United States v. Lee , 502 F.3d 780, 780-81 (8th Cir. 2007) (appeal waiver barred challenge to restitution order, as defendant waived right to challenge all non-jurisdictional issues and did not preserve challenge to restitution); the record demonstrates that Preston knowingly and intelligently entered into the plea agreement and appeal waiver, see Nguyen v. United States , 114 F.3d 699, 703 (8th Cir. 1997) (defendant’s statements during plea hearing carry strong presumption of verity); and enforcing the waiver would not result in a miscarriage of justice, see United States v. Schulte , 436 F.3d 849, 849-51 (8th Cir. 2006) (appeal challenging restitution amount does not fall within miscarriage-of-justice exception to appeal-waiver rule). While Preston’s pro se challenge to the district court’s jurisdiction is beyond the scope of the appeal waiver, it fails on the merits. See 18 U.S.C. § 3231 (district courts have original jurisdiction of all offenses against laws of United States); United States v. James , 328 F.3d 953, 954-55, 958 (7th Cir. 2003) (laws of United States apply to all persons within its borders; affirming conviction of defendant “Moorish national”). An *3 independent review of the record under Penson v. Ohio , 488 U.S. 75, 80 (1988), reveals no nonfrivolous issues for appeal.

The judgment is affirmed. Counsel’s motion to withdraw is granted.

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Notes

[1] The Honorable Catherine D. Perry, Chief Judge, United States District Court for the Eastern District of Missouri.

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