United States v. Izell Steven

Filing

PER CURIAM OPINION FILED - THE COURT: PASCO M. BOWMAN, LAVENSKI R. SMITH and ROGER L. WOLLMAN (UNPUBLISHED) [3752920] [10-2980]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-2980
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United States of America,
Appellee,
v.
Izell Stevens,
Appellant.

*
*
* Appeal from the United States
* District Court for the
* Eastern District of Missouri.
*
*
[UNPUBLISHED]
*
*
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Submitted: February 3, 2011
Filed: February 8, 2011
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Before WOLLMAN, BOWMAN, and SMITH, Circuit Judges.
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PER CURIAM.
Izell Stevens directly appeals the sentence the District Court1 imposed after he
pleaded guilty to a drug offense. He entered his guilty plea pursuant to a written plea
agreement containing an appeal waiver, and the District Court sentenced him below
the applicable advisory Guidelines range to the statutory minimum term of
imprisonment. His counsel has moved to withdraw, and has filed a brief under Anders
v. California, 386 U.S. 738 (1967), arguing that the sentence is unreasonable. Stevens

1

The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.

Appellate Case: 10-2980

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Date Filed: 02/08/2011 Entry ID: 3752920

has filed a pro se supplemental brief asserting claims of ineffective assistance of
counsel, and he has filed two pro se motions in this court.
First, we conclude that Stevens’s claims of ineffective assistance of counsel are
not appropriate for consideration on direct appeal. See United States v. Looking
Cloud, 419 F.3d 781, 788-89 (8th Cir. 2005) (noting that ineffective-assistance claims
are generally inappropriate for direct appeal and are better raised in habeas
proceedings; court will not consider ineffective-assistance claims on direct appeal
except in exceptional cases where district court has developed appropriate record or
where result would be plain miscarriage of justice). Further, we conclude that
counsel’s challenge to the reasonableness of Stevens’s sentence is barred by the
appeal waiver because the issue is clearly and unambiguously within the scope of the
waiver, the record establishes that Stevens knowingly and voluntarily entered into
both the plea agreement and the appeal waiver, and enforcement of 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) (setting forth criteria for enforcing appeal waiver).
Finally, we have reviewed the record independently under Penson v. Ohio, 488 U.S.
75, 80 (1988), and we have found no non-frivolous issue beyond the scope of the
appeal waiver.
Accordingly, we decline to consider Stevens’s ineffective-assistance claims on
direct appeal, we dismiss the appeal based upon the appeal waiver, we grant counsel’s
motion to withdraw, and we deny Stevens’s pending motions as moot.
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Appellate Case: 10-2980

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Date Filed: 02/08/2011 Entry ID: 3752920