United States v. Mark A. Lang, Jr. ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-1307
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Mark A. Lang, Jr., *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: January 17, 2006
Filed: January 19, 2006
___________
Before MURPHY, BYE, and BENTON, Circuit Judges.
___________
PER CURIAM.
Mark Lang challenges the sentence the district court1 imposed after he pleaded
guilty to a drug charge. His counsel has moved to withdraw and filed a brief under
Anders v. California, 386 U.S. 738 (1967), and Lang has filed a pro se supplemental
brief. The government has moved to dismiss the appeal based on an appeal waiver.
We conclude that the appeal waiver should be enforced: the district court
conducted a proper Rule 11 colloquy; Lang indicated that his plea was voluntary and
1
The Honorable Carol E. Jackson, Chief Judge, United States District Court for
the Eastern District of Missouri.
knowing, and the district court discussed the appeal waiver with him at the plea
hearing; this appeal falls within the scope of the waiver; and no injustice would result,
as the sentence is consistent with the plea agreement. See United States v. Andis, 333
F.3d 886, 889-91 (8th Cir.) (en banc) (court should enforce appeal waiver and dismiss
appeal where it falls within scope of waiver, both plea agreement and waiver were
entered into knowingly and voluntarily, and no miscarriage of justice would result;
one important way district court can ensure plea agreement and appeal waiver are
knowing and voluntary is to properly question defendant about decision to enter
agreement and to waive right to appeal), cert. denied, 540 U.S. 997 (2003). The
waiver also covered any issues under United States v. Booker, 125 S. Ct. 738 (2005).
See United States v. Reeves, 410 F.3d 1031, 1034 (8th Cir.) (right to appeal under
Booker is among rights waived by broad appeal waiver, even if defendant did not
anticipate Booker ruling), cert. denied, 126 S. Ct. 469 (2005).
Neither Lang’s pro se brief nor our independent review of the record under
Penson v. Ohio, 488 U.S. 75 (1988), reveals any nonfrivolous issue not covered by the
appeal waiver. We note that any ineffective-assistance claim should be deferred to 28
U.S.C. § 2255 proceedings. See United States v. Hughes, 330 F.3d 1068, 1069 (8th
Cir. 2003). Accordingly, we grant the government’s motion to dismiss, grant
counsel’s motion to withdraw, and deny Lang’s motion for new counsel.
______________________________
-2-