United States v. Thomas Finley , 496 F. App'x 691 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-2396
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Thomas Harry Finley
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: January 4, 2013
Filed: January 11, 2013
[Unpublished]
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Before BYE, GRUENDER, and BENTON, Circuit Judges.
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PER CURIAM.
Thomas Finley appeals the above-Guidelines sentence imposed on him by the
district court1 after he pled guilty to a drug charge in accordance with a written plea
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
agreement. Counsel has filed a brief under Anders v. California, 386 U.S. 738
(1967), in which he challenges Finley’s sentence and seeks leave to withdraw. Finley
has filed a pro se supplemental brief arguing that the plea agreement was void and
that his counsel was ineffective.
As relevant, the plea agreement contained an appeal waiver in which Finley
agreed to waive his right to appeal the conviction and sentence except under certain
limited circumstances. The record reflects that Finley entered into the plea agreement
and the appeal waiver knowingly and voluntarily. At his arraignment and plea
hearing, Finley confirmed that he understood and had signed the plea agreement. He
further testified that he understood he was waiving his right to appeal, and that no one
had forced or pressured him to plead guilty. Finley specifically disavowed, both in
the agreement and at the plea hearing, the existence of any agreements or promises
other than those set forth in the plea agreement. See Nguyen v. United States, 114
F.3d 699, 703-04 (8th Cir. 1997) (defendant’s statements made during plea hearing
are entitled to strong presumption of verity). The waiver is therefore valid. See
United States v. Jennings, 662 F.3d 988, 990 (8th Cir. 2011) (appellate court must
confirm that both waiver and plea agreement were entered into knowingly and
voluntarily); United Stated v. Azure, 571 F.3d 769, 772 (8th Cir. 2009) (de novo
review of whether defendant waived right to appeal sentence).
Counsel’s arguments fall within the scope of the waiver, and this court
concludes that no miscarriage of justice would result from enforcing the waiver in
this case. See Jennings, 662 F.3d at 990 (valid appeal waiver enforceable as to issues
within its scope, providing no miscarriage of justice would result). Although Finley’s
pro se ineffective-assistance claim is not barred by the appeal waiver, this court
declines to consider it in this 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).
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Having reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), this
court finds no nonfrivolous issues outside the scope of the waiver. The appeal is
dismissed based on the appeal waiver, and counsel is granted leave to withdraw.
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