United States v. Brandon McCullough ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-2738
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Brandon Lane McCullough
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: January 25, 2023
Filed: January 30, 2023
[Unpublished]
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Before LOKEN, BENTON, and ERICKSON, Circuit Judges.
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PER CURIAM.
Brandon McCullough appeals after he pleaded guilty to child pornography
charges under a plea agreement containing an appeal waiver, and the district court1
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The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri.
sentenced him to 360 months in prison. His counsel has moved to withdraw, and has
filed a brief under Anders v. California, 386 U.S. 738 (1967), raising the validity of
the plea and the statutes of conviction, the reasonableness of the sentence, and the
effectiveness of counsel.
Based on McCullough’s statements at the plea hearing, we conclude that he
entered into both the plea agreement and the appeal waiver knowingly and
voluntarily. See United States v. Michelsen, 141 F.3d 867, 871-72 (8th Cir. 1998)
(appeal waiver is enforceable so long as it resulted from knowing and voluntary
decision); see also United States v. Andis, 333 F.3d 886, 890-91 (8th Cir. 2003) (en
banc) (one important way district court can ensure that plea agreement and appeal
waiver are entered into knowingly and voluntarily is to question defendant about
decision to enter into agreement and to waive right to appeal); Nguyen v. United
States, 114 F.3d 699, 703 (8th Cir. 1997) (defendant’s statements made during plea
hearing carry strong presumption of verity). We decline to consider McCullough’s
ineffective-assistance claim on direct appeal. See United States v. Hernandez, 281
F.3d 746, 749 (8th Cir. 2002) (in general, ineffective-assistance claim is not
cognizable on direct appeal; such claim is properly raised in 28 U.S.C. § 2255 action).
Because we conclude that McCullough’s plea was valid, his challenge to the
reasonableness of his sentence is barred by the appeal waiver. See United States v.
Scott, 627 F.3d 702, 704 (8th Cir. 2010) (de novo review of validity and applicability
of appeal waiver); Andis, 333 F.3d at 889-92 (appeal waiver will be enforced if
appeal falls within scope of waiver, defendant knowingly and voluntarily entered into
plea agreement and waiver, and enforcing waiver would not result in miscarriage of
justice).
We have also independently reviewed the record under Penson v. Ohio, 488
U.S. 75 (1988), and have found no non-frivolous issues for appeal falling outside the
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scope of the waiver. Accordingly, we dismiss the appeal based on the appeal waiver,
and grant counsel’s motion to withdraw.
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