United States v. Terell Armstead

Filing

PER CURIAM OPINION FILED - THE COURT: Kermit E. Bye, Morris S. Arnold and Bobby E. Shepherd (UNPUBLISHED); Granting [3947904-2] motion to withdraw as counsel filed by Mr. Chris Cooklin, subject to counsel informing appellant about procedures for seeking rehearing or filing a petition for certiorari. [4018125] [12-2676]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-2676
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United States of America
lllllllllllllllllllll Appellee
v.
Terell Lamonte Armstead, also known as Buddy, also known as Lamonte, also
known as Monte, also known as Monster
lllllllllllllllllllll Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: March 21, 2013
Filed: March 26, 2013
[Unpublished]
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Before BYE, ARNOLD, and SHEPHERD, Circuit Judges.
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Appellate Case: 12-2676

Page: 1

Date Filed: 03/26/2013 Entry ID: 4018125

PER CURIAM.
Terell Armstead pleaded guilty to conspiring to distribute 100 grams or more
of heroin within 1,000 feet of a school. The district court1 accepted without objection
the presentence report’s Sentencing Guidelines calculations (which included an
offense level increase for role in the offense), departed upward because the offense
conduct caused serious injury to another person, and sentenced Mr. Armstead at the
bottom of the revised Guidelines range to 235 months in prison. He appeals. His
counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S.
738 (1967); Mr. Armstead has filed a pro se supplemental brief.
With respect to issues raised in counsel’s brief, we conclude that no violation
of Federal Rule of Criminal Procedure 11 occurred; and that the district court did not
abuse its discretion in imposing the sentence, see Gall v. United States, 552 U.S. 38,
51 (2007) (standard of review). We decline to consider any ineffective-assistance
issue in this direct appeal. See United States v. McAdory, 501 F.3d 868, 872-73 (8th
Cir. 2007) (appellate court ordinarily defers ineffective-assistance claim to 28 U.S.C.
§ 2255 proceedings). We also reject the pro se arguments. First, Mr. Armstead was
convicted of only one offense, the count to which he pleaded guilty. Second, both in
his plea agreement and at his plea hearing, he indicated he understood that no promise
had been made regarding his Guidelines range. Third, even if the drug quantity
directly involving a protected location was less than the total drug quantity involved
in the offense, the greater of the base offense levels under the two relevant
subsections must be applied in calculating the Guidelines range. See U.S.S.G.
§ 2D1.2(a)(1), (a)(2). Last, Mr. Armstead had an opportunity to challenge the
sentencing enhancements, but he agreed in his plea agreement that the serious-injury

1

The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
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Appellate Case: 12-2676

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Date Filed: 03/26/2013 Entry ID: 4018125

enhancement would apply, and he withdrew his initial objection to the role
enhancement.
Accordingly, we affirm the judgment of the district court, and we grant
counsel’s motion to withdraw, subject to counsel informing appellant about
procedures for seeking rehearing or filing a petition for certiorari.
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Appellate Case: 12-2676

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Date Filed: 03/26/2013 Entry ID: 4018125