United States v. Tyrone Valentine

Filing

PER CURIAM OPINION FILED - THE COURT: Duane Benton, Pasco M. Bowman and Jane Kelly (UNPUBLISHED) [4373264] [15-2455, 15-2743]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2455
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Tyrone Valentine
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 15-2743
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellant
v.
Tyrone Valentine
lllllllllllllllllllll Defendant - Appellee
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Appeals from United States District Court
for the Eastern District of Missouri - St. Louis
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Appellate Case: 15-2455

Page: 1

Date Filed: 03/02/2016 Entry ID: 4373264

Submitted: February 5, 2016
Filed: March 2, 2016
[Unpublished]
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Before BENTON, BOWMAN, and KELLY, Circuit Judges.
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PER CURIAM.
Pursuant to a written plea agreement, Tyrone Valentine pled guilty to being a
felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). The district
court,1 applying the Armed Career Criminal Act (ACCA) over Valentine’s
constitutional objections, varied below the resulting Guidelines range and imposed
the statutory minimum of 15 years in prison and 3 years of supervised release.
Valentine directly appeals, and the government cross-appeals. Valentine’s counsel
has moved to withdraw, and has filed a brief under Anders v. California, 386 U.S.
738 (1967). Valentine raises additional arguments in a pro se supplement brief.
Initially, this court finds that Valentine’s arguments on appeal about an
involuntary plea, and ineffective assistance of counsel, are not appropriate for
consideration in this direct appeal. See United States v. Villareal-Amarillas, 454 F.3d
925, 932 (8th Cir. 2006); United States v. Looking Cloud, 419 F.3d 781, 788-89 (8th
Cir. 2005). As to the renewed arguments about the constitutionality of the ACCA,
the district court did not err in overruling the constitutional objections raised below.
See United States v. Billiot, 785 F.3d 1266, 1269 (8th Cir. 2015) (de novo review).
Valentine’s sentence does not implicate Johnson v. United States, 135 S. Ct. 2551
(2015), because his sentence was not increased under the ACCA’s residual clause;
1

The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
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and circuit law forecloses Valentine’s arguments that the ACCA violates the Sixth
Amendment, see United States v. Daniels, 775 F.3d 1001, 1005-06 (8th Cir. 2014);
the Eighth Amendment, see United States v. Montgomery, 701 F.3d 1218, 1224 (8th
Cir. 2012); separation of powers, see United States v. Prior, 107 F.3d 654, 658 (8th
Cir. 1997); and due process, see United States v. Jones, 28 F.3d 69, 70 (8th Cir. 1994)
(per curiam).
Valentine also argues on appeal that the district court erred in finding that his
prior Missouri conviction for two counts of first-degree assault constituted two
predicate offenses under the ACCA--an issue this court reviews only for plain error
given the absence of any objection below. See United States v. Pirani, 406 F.3d 543,
549 (8th Cir. 2005). The court did not plainly err, because Valentine stipulated in the
plea agreement that the two offenses were “committed on occasions different from
one another,” see 18 U.S.C. § 924(e)(1); and further, unobjected-to factual statements
in the presentence report show that the assaults occurred in different years and against
different victims at different locations, see United States v. Beatty, 9 F.3d 686, 690
(8th Cir.1993); see also United States v. Humphrey, 759 F.3d 909, 911 (8th Cir.
2014) (“To qualify as predicate offenses under the statute, each conviction must be
a separate and distinct criminal episode, rather than part of a continuous course of
conduct.”).2
Valentine’s remaining claims fall within the scope of his plea agreement’s
appeal waiver, which this court will enforce, see United States v. Scott, 627 F.3d 702,
704 (8th Cir. 2010) (de novo review), because Valentine’s sworn testimony at the
plea hearing shows that he entered into the plea agreement, and the appeal waiver,
knowingly and voluntarily; and dismissing the appeal based on the waiver will not
result in a miscarriage of justice, see United States v. Andis, 333 F.3d 886, 889-90

2

Valentine does not challenge the court’s finding that a federal drug conviction
constituted a third predicate offense.
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(8th Cir. 2003) (en banc). Further, review of the record pursuant to Penson v. Ohio,
488 U.S. 75 (1988), reveals no nonfrivolous issues that fall outside the scope of the
appeal waiver.
Accordingly, having jurisdiction under 28 U.S.C. § 1291, this court declines
to consider Valentine’s involuntary-plea and ineffective-assistance claims in this
direct appeal; affirms the district court’s application of the Armed Career Criminal
Act; and dismisses the remainder of No. 15-2455 based upon the appeal waiver. The
government’s cross-appeal may proceed, and this court defers ruling on the motion
of Valentine’s counsel to withdraw until the cross-appeal is disposed of, either by
dismissal or by a decision of this court.
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Date Filed: 03/02/2016 Entry ID: 4373264