782 Fed.Appx. 501 (8th Cir. 2019), 18-1922, United States v. Anderson

Docket Nº:18-1922
Citation:782 Fed.Appx. 501
Opinion Judge:PER CURIAM.
Party Name:UNITED STATES of America Plaintiff-Appellee v. Chad Daniel ANDERSON Defendant-Appellant
Attorney:Megan A. Healy, Assistant U.S. Attorney, Jacob T. Rodenbiker, Assistant U.S. Attorney, U.S. Attorney’s Office, District of North Dakota, Fargo, ND, for Plaintiff-Appellee Chad Daniel Anderson, Pro Se Ronald K. Hettich, Hettich Law Firm, Fargo, ND, for Defendant-Appellant
Judge Panel:Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
Case Date:July 25, 2019
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 501

782 Fed.Appx. 501 (8th Cir. 2019)

UNITED STATES of America Plaintiff-Appellee

v.

Chad Daniel ANDERSON Defendant-Appellant

No. 18-1922

United States Court of Appeals, Eighth Circuit

July 25, 2019

Submitted: March 15, 2019

Editorial Note:

UNPUBLISHED. (See Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 8th Cir. Rule 32.1A.)

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[Copyrighted Material Omitted]

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Appeal from United States District Court for the District of North Dakota

Megan A. Healy, Assistant U.S. Attorney, Jacob T. Rodenbiker, Assistant U.S. Attorney, U.S. Attorney’s Office, District of North Dakota, Fargo, ND, for Plaintiff-Appellee

Chad Daniel Anderson, Pro Se

Ronald K. Hettich, Hettich Law Firm, Fargo, ND, for Defendant-Appellant

Before GRUENDER, BENTON, and GRASZ, Circuit Judges.

PER CURIAM.

Chad Anderson pled guilty to conspiracy to possess with intent to distribute fentanyl. The district court1 sentenced Anderson to 60 months of imprisonment. Anderson appeals his sentence and we affirm.

I. Background

Anderson was charged with two violations of federal law. He entered into a plea agreement with the government and pled guilty to Count I of the indictment — conspiracy to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § § 841(a) and 846. The plea agreement contained an appeal waiver and a joint recommendation clause for a sentence of 18 months of imprisonment. The plea agreement specifically stated the recommendation was not binding and that the sentencing court’s refusal to accept any or all terms did not give Anderson a right to withdraw his plea. Anderson appeared in the District of North Dakota and pled guilty.

Between the guilty plea hearing and sentencing, Anderson’s case was reassigned to a different district judge sitting by designation. At the sentencing hearing, the judge announced the United States Sentencing Commission Guidelines ("U.S.S.G." or "Guidelines") range was 77 to 96 months of imprisonment and then asked the government what 18 U.S.C. § 3553(a) factors were considered to support the joint recommendation, a sentence far below the Guidelines. After a colloquy with the attorneys, the district court sentenced Anderson to 60 months of imprisonment. When the defendant’s counsel asked why the jointly recommended 18-month sentence was not used, the district court stated that based on the § 3553(a) factors he saw no reason to vary so far downward. The district court further explained it took into account Anderson’s substantial criminal history, violations of probation and parole, his illicit possession of a secure digital card in jail, and the fact the offense involved fentanyl. Anderson filed a timely appeal.

II. Analysis

On appeal, Anderson argues the government breached the terms of his plea agreement, there was a sentencing error, and he was denied his due process rights when the case was reassigned to a new judge. The government urges this court to dismiss

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on the grounds the appeal waiver in the plea agreement bars this appeal.

A. Appeal Waiver

Before reaching the merits of Andersons appeal, we begin by deciding whether the plea agreement forecloses consideration of the appeal. "As a general rule, a defendant is allowed to waive appellate rights" and those...

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