United States v. Jose Valencia-Mata ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-1614
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jose Valencia-Mata
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: August 7, 2014
Filed: August 14, 2014
[Unpublished]
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Before WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Jose Valencia-Mata directly appeals the below-Guidelines-range sentence the
district court1 imposed after he pled guilty to a drug-conspiracy offense, pursuant to
1
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
a plea agreement containing an appeal waiver. His counsel has moved to withdraw,
and has filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that
Valencia-Mata’s sentence is substantively unreasonable. Valencia-Mata has filed a
pro se brief, suggesting that his guilty plea was involuntary, that he received
ineffective assistance of counsel, and that he was entitled to safety-valve relief.
First, we conclude that Valencia-Mata’s challenge to the voluntariness of his
guilty plea is not cognizable because he did not move to withdraw his plea below. See
United States v. Umanzor, 617 F.3d 1053, 1060 (8th Cir. 2010) (defendant may not
challenge voluntariness of guilty plea for first time on direct appeal if he did not move
to withdraw plea in district court). Next, we decline to consider his ineffective-
assistance claims on direct appeal. See United States v. McAdory, 501 F.3d 868,
872-73 (8th Cir. 2007) (ineffective-assistance claims are ordinarily deferred to 28
U.S.C. § 2255 proceedings). Further, after careful de novo review, we enforce the
appeal waiver as to the remaining challenges to Valencia-Mata’s sentence. See United
States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (court should enforce
appeal waiver and dismiss appeal where it falls within scope of waiver, plea
agreement and waiver were entered into knowingly and voluntarily, and no
miscarriage of justice would result); see also United States v. Scott, 627 F.3d 702, 704
(8th Cir. 2010) (de novo review of validity and applicability of appeal waiver).
Finally, having reviewed the record independently under Penson v. Ohio, 488 U.S. 75(1988), we find no non-frivolous issues outside the scope of the appeal waiver.
Accordingly, we dismiss this appeal.
As for counsel’s motion to withdraw, we conclude that allowing counsel to
withdraw at this time would not be consistent with the Eighth Circuit’s 1994
Amendment to Part V of the Plan to Implement the Criminal Justice Act of 1964. We
therefore deny counsel’s motion to withdraw as premature, without prejudice to
counsel refiling the motion upon fulfilling the duties set forth in the Amendment.
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