United States v. Timothy Sparks , 489 F. App'x 143 ( 2012 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-1879
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Timothy W. Sparks
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: October 4, 2012
Filed: October 9, 2012
[Unpublished]
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BYE, GRUENDER, and BENTON, Circuit Judges.
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PER CURIAM.
Pursuant to a written plea agreement, Timothy Sparks pled guilty to being a
felon in possession of a firearm and to a counterfeiting offense. The district court1
sentenced him to two concurrent prison terms of 210 months, the bottom of the
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
calculated Guidelines range. On appeal, Sparks’s counsel has moved to withdraw and
filed a brief under Anders v. California, 386 U.S. 738 (1967), noting that Sparks
entered into a plea agreement containing an appeal waiver, but nevertheless arguing
that the district court abused its discretion in declining to grant Sparks a downward
departure or variance. Sparks has filed a pro se supplemental brief, arguing that he
received ineffective assistance of counsel.
Sparks’s ineffective-assistance claim is not within the scope of the appeal
waiver, but this court declines to address it on 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).
Counsel’s arguments, however, are within the scope of the appeal waiver, and
this court enforces the appeal waiver as to them. See United States v. Jennings, 662
F.3d 988, 990 (8th Cir. 2011) (court should enforce appeal waiver if both waiver and
plea agreement were entered into knowingly and voluntarily, appeal is within
waiver’s scope, and no miscarriage of justice would result); see also United States v.
Azure, 571 F.3d 769, 772 (8th Cir. 2009) (de novo review of whether defendant
waived right to appeal sentence).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75(1988), this court finds no nonfrivolous issues for appeal, outside the scope of the
appeal waiver. This court dismisses the appeal and grants counsel’s motion to
withdraw.
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