Terry Harrington v. City of Council Bluffs

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2906
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Michael Smythe, * [UNPUBLISHED]
*
Appellant. *
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Submitted: April 3, 2012
Filed: April 9, 2012
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Before LOKEN, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal, Michael Smythe challenges the within-
Guidelines-range sentence imposed by the District Court after Smythe pleaded guilty1
to one count of aiding and abetting a bank robbery. Smythe’s counsel has moved to
withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967),
arguing that the District Court should not have sentenced Smythe as a career offender
under the Guidelines. Smythe has filed a pro se supplemental brief also challenging
The Honorable Ortrie D. Smith, United States District Judge for the Western1
District of Missouri.

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the career-offender determination and additionally claiming that he received
ineffective assistance of counsel.
Smythe pleaded guilty pursuant to a written plea agreement containing a clause
under which he waived the right to appeal his sentence, directly or collaterally, except
for claims of an illegal sentence, ineffective assistance of counsel, and prosecutorial
misconduct. Thus, we conclude that Smythe’s claim of ineffective assistance of
counsel is not barred by the appeal waiver. Nevertheless, we decline to consider the
ineffective-assistance claim in this direct appeal. See United States v. McAdory, 501
F.3d 868, 872–73 (8th Cir. 2007) (noting that appellate court ordinarily defers
ineffective-assistance claims to 28 U.S.C. § 2255 proceedings). As to all other
arguments asserted on appeal, we conclude that they are barred by the appeal waiver.
See United States v. Jennings, 662 F.3d 988, 990 (8th Cir. 2011) (discussing
enforcement of appeal waivers); United States v. Scott, 627 F.3d 702, 704–05 (8th
Cir. 2010) (rejecting sentencing-error arguments where appeal waiver barred claims
that the district court abused its discretion or misapplied the Guidelines in calculating
and imposing sentence); see also United States v. Estrada-Bahena, 201 F.3d 1070,
1071 (8th Cir. 2000) (per curiam) (enforcing appeal waiver in Anders case). Finally,
having reviewed the record independently under Penson v. Ohio, 488 U.S. 75 (1988),
we find no nonfrivolous issues outside the scope of the appeal waiver.
In sum, we decline to consider Smythe’s ineffective-assistance claim in this
direct appeal, we otherwise dismiss the appeal based on the appeal waiver, and we
grant counsel’s motion to withdraw. In addition, we deny Smythe’s pending motion
for appointment of new counsel.
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