United States v. Phillip Kelly ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3876
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Phillip Kelly, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 5, 2009
Filed: July 30, 2009
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Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
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PER CURIAM.
Phillip Kelly appeals the sentence imposed by the district court1after he pleaded
guilty to drug and firearm offenses. Pursuant to Anders v. California, 386 U.S. 738(1967), Kelly’s counsel has moved to withdraw, and has filed a brief in which he
suggests that the sentence (the statutory minimum) could have been more lenient. In
a pro se supplemental brief, Kelly argues that he received ineffective assistance of
counsel. For the reasons discussed below, we dismiss this appeal.
1
The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
Kelly entered his guilty plea pursuant to a plea agreement in which he waived
his right to appeal his sentence if the court sentenced him consistently with the plea-
agreement stipulations. We will enforce the appeal waiver here. The court sentenced
Kelly consistently with the plea agreement, and the record reflects that he understood
and voluntarily accepted the terms of his plea agreement, including the appeal waiver.
Further, the Anders-brief argument falls within the scope of the waiver, and no
injustice would result from enforcing it. See United States v. Andis, 333 F.3d 886,
889-92 (8th Cir. 2003) (en banc) (discussing enforceability of appeal waiver); United
States v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam) (enforcing
appeal waiver in Anders case). As to Kelly’s pro se argument, ineffective-assistance
claims are more appropriately raised in proceedings under 28 U.S.C. § 2255, see
United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003).2
Having reviewed the record independently pursuant to Penson v. Ohio, 488
U.S. 75, 80 (1988), for any nonfrivolous issue not covered by the waiver, we find
none. Accordingly, we dismiss the appeal, and we grant counsel’s motion to
withdraw on condition that counsel inform appellant about the procedures for filing
petitions for rehearing and for certiorari.
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2
Kelly preserved the right to bring ineffective-assistance claims in
postconviction proceedings.
-2-