United States v. Lorenzo Christian

Filing

PER CURIAM OPINION FILED - THE COURT: ROGER L. WOLLMAN, STEVEN M. COLLOTON and RAYMOND W. GRUENDER (UNPUBLISHED) [3663260] [09-2991]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 09-2991
___________
United States of America,
Appellee,
v.
Lorenzo Christian,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* Southern District of Iowa.
*
* [UNPUBLISHED]
*
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Submitted: May 3, 2010
Filed: May 11, 2010

Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Pursuant to a written plea agreement containing an appeal waiver, Lorenzo
Christian pleaded guilty to conspiring to distribute and possess with intent to
distribute cocaine base, and opening and maintaining a place for the purpose of
distributing and using cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
856(a)(1), and 846. The district court1 sentenced him within the applicable advisory
Guidelines range to 168 months in prison and 5 years of supervised release. On
appeal, his counsel has moved to withdraw and has filed a brief under Anders v.
California, 386 U.S. 738 (1967), in which he asserts that fundamental fairness requires
1

The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.

Appellate Case: 09-2991

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Date Filed: 05/11/2010 Entry ID: 3663260

this court to set aside the appeal waiver, and further argues that the district court
should have delayed sentencing or imposed a shorter sentence, was prejudiced against
Christian based on a separate civil suit Christian had filed, and relied on false evidence
in sentencing him. Christian has filed two pro se supplemental briefs in which he
echoes counsel’s arguments and adds that the indictment was insufficient and was
barred by the statute of limitations, and that the government presented no admissible
evidence supporting his conviction. Christian also suggests that his trial counsel
rendered ineffective assistance.
To the extent Christian is attempting to assert an ineffective-assistance-ofcounsel claim, we decline to consider it on direct appeal. See United States v. Cain,
134 F.3d 1345, 1352 (8th Cir. 1998) (ineffective-assistance claim should be raised in
28 U.S.C. § 2255 motion). Upon careful review, we conclude that the remaining
arguments asserted in the briefs are all precluded by the appeal waiver contained in
Christian’s written plea agreement, because Christian knowingly and voluntarily
entered into the plea agreement and the appeal waiver, the issues raised all fall within
the scope of the appeal waiver, and enforcing the appeal waiver would not result in
a miscarriage of justice. See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir.
2003) (en banc) (discussing enforceability of appeal waiver); see also United States
v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam) (enforcing
appeal waiver in Anders case).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issue for appeal beyond the scope of the appeal
waiver. Accordingly, we grant counsel’s motion to withdraw, and we dismiss the
appeal.
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Date Filed: 05/11/2010 Entry ID: 3663260