United States v. Terry Baldwin , 355 F. App'x 970 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-2495
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Terry L. Baldwin, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: November 10, 2009
Filed: December 11, 2009
___________
Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
In this direct criminal appeal, Terry Baldwin appeals the 300-month sentence
the district court1 imposed after he pleaded guilty to child pornography charges. On
appeal, his counsel has moved to withdraw and has filed a brief under Anders v.
California, 386 U.S. 738 (1967), challenging Baldwin’s sentence. Baldwin has filed
a pro se supplemental brief, challenging the factual basis for his conviction and
arguing that his right to a speedy trial was violated, that he was denied effective
assistance of counsel, and that his guilty plea was not voluntary. He has also filed
1
The Honorable Richard G. Kopf, United States District Court Judge for the
District of Nebraska.
various motions requesting the discharge of defense counsel, the appointment of new
counsel, the return of property, a default judgment, and a motion for leave to file a pro
se supplemental brief.
We conclude that all of the issues raised in counsel’s and Baldwin’s briefs fall
within the scope of the appeal waiver contained in Baldwin’s plea agreement, that
Baldwin knowingly and voluntarily entered into the plea agreement and the appeal
waiver, and that enforcement of the waiver would not result in a miscarriage of justice.
See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (court will
enforce appeal waiver in plea agreement and dismiss appeal when appeal falls within
scope of waiver, both waiver and plea agreement were entered into knowingly and
voluntarily, and enforcing waiver would not result in miscarriage of justice); see also
Fed. R. Crim. P. 11(c)(1)(C) (plea agreement may specify that government will agree
that specific sentence or sentencing range is appropriate disposition of case; such
recommendation binds court once court accepts plea agreement); cf. United States v.
McAdory, 501 F.3d 868, 872-73 (8th Cir. 2007) (appellate court ordinarily defers
ineffective-assistance claims to 28 U.S.C. § 2255 proceedings); United States v. Cain,
134 F.3d 1345, 1352 (8th Cir. 1998) (claim that ineffective assistance of counsel
rendered guilty plea involuntary is more properly raised in § 2255 proceedings).
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we have found no nonfrivolous issues for appeal beyond the scope of the
appeal waiver. Accordingly, we grant counsel’s motion to withdraw, subject to
counsel informing Baldwin about procedures for seeking rehearing or filing a petition
for certiorari; we deny Baldwin’s pending motions; and we dismiss the appeal.
______________________________
-2-