United States v. Ricky Hick

Filing

PER CURIAM OPINION FILED - THE COURT: DIANA E. MURPHY, MORRIS S. ARNOLD and DUANE BENTON (UNPUBLISHED); Granting [3811000-2] motion to withdraw as counsel, filed by Ms. Jennifer Diane Akre, subject to her informing Hicks about procedures for seeking rehearing or filing a petitioner for certiorari. [3845639] [11-1886]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 11-1886
___________
United States of America,
Appellee,
v.
Ricky P. Hicks,
Appellant.

*
*
* Appeal from the United States
* District Court for the
* Western District of Missouri.
*
* [UNPUBLISHED]
*
*
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Submitted: November 1, 2011
Filed: November 2, 2011
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Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
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PER CURIAM.
Pursuant to a written plea agreement that contained an appeal waiver, Ricky P.
Hicks pled guilty to conspiring to distribute methamphetamine mixture, in violation
of 21 U.S.C. §§ 841(a)(1) and 846. The district court1 imposed a sentence of 84
months in prison, above the Guidelines range of 24-30 months, but below the 20-year
statutory maximum, see 21 U.S.C. § 841(b)(1)(C). Hicks’s counsel seeks to withdraw
and has filed a brief under Anders v. California, 386 U.S. 738 (1967), in which she

1

The Honorable Greg Kays, United States District Judge for the Western
District of Missouri.

Appellate Case: 11-1886

Page: 1

Date Filed: 11/02/2011 Entry ID: 3845639

questions whether this court should enforce the appeal waiver. Hicks has filed a pro
se brief arguing, among other things, that his counsel was ineffective.
This court concludes that Hicks’s claim of ineffective assistance of counsel is
not barred by the appeal waiver, but also is not appropriate for consideration on direct
appeal. See United States v. McAdory, 501 F.3d 868, 872 (8th Cir. 2007). This court
further concludes that the appeal waiver should be enforced as to all other issues in
this appeal. See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en
banc) (setting forth criteria for enforcing 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).
This court independently reviewed the record under Penson v. Ohio, 488 U.S.
75, 80 (1988) and found no nonfrivolous issue not covered by the appeal waiver.
Accordingly, this court declines to consider Hicks’s ineffective-assistance claim on
direct appeal; dismisses the appeal; and grants counsel leave to withdraw, subject to
her informing Hicks about procedures for seeking rehearing or filing a petition for
certiorari.
______________________________

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Appellate Case: 11-1886

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Date Filed: 11/02/2011 Entry ID: 3845639