United States v. Aaron Benson

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Diana E. Murphy and Lavenski R. Smith (UNPUBLISHED) The motion to withdraw is granted, subject to counsel informing appellant about procedures for seeking rehearing or filing a petition for certiorari. [4123656] [13-2109]

United States Court of Appeals
For the Eighth Circuit
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No. 13-2109
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Aaron Benson
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: February 7, 2014
Filed: February 13, 2014
[Unpublished]
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Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.
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PER CURIAM.
Aaron Benson pleaded guilty to a drug offense. In accordance with his written
plea agreement under Fed. R. Crim. P. 11(c)(1)(C), the district court1 sentenced him
1

The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.

Appellate Case: 13-2109

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Date Filed: 02/13/2014 Entry ID: 4123656

to 140 months in prison and four years of supervised release. On appeal, counsel for
Benson seeks to withdraw, and has filed a brief under Anders v. California, 386 U.S.
738 (1967), arguing that Benson’s plea was involuntary and that he received
ineffective assistance of counsel. Benson has filed a supplemental brief, in which he
also challenges the validity of his plea, and argues that the Guidelines calculation was
incorrect, and that he received ineffective assistance of counsel.
We will dismiss this appeal. The written plea agreement contains an appeal
waiver, and we conclude that the waiver should be enforced. See United States v.
Scott, 627 F.3d 702, 704 (8th Cir. 2010) (de novo review of validity and applicability
of appeal waiver); United States v. Andis, 333 F.3d 886, 890-92 (8th Cir. 2003) (en
banc) (enforceability of appeal waiver). Contrary to the assertions made in the
appellate briefs, Benson’s sworn plea-hearing testimony reflects that he entered into
the plea agreement knowingly and voluntarily, and understood and agreed to the
terms of the appeal waiver. See Nguyen v. United States, 114 F.3d 699, 703 (8th Cir.
1997) (defendant’s statements made during plea hearing are entitled to strong
presumption of verity). Benson received the sentence to which he stipulated in the
plea agreement, and we conclude that no miscarriage of justice would result from
enforcing the appeal waiver.
Although Benson’s ineffective-assistance claims fall outside the scope of the
waiver, we defer them to 28 U.S.C. § 2255 proceedings. See United States v.
Looking Cloud, 419 F.3d 781, 788-89 (8th Cir. 2005).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
90 (1988), we find no non-frivolous issues outside the scope of the waiver.
Accordingly, we affirm the judgment of the district court, and 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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Date Filed: 02/13/2014 Entry ID: 4123656