United States v. Corey Odom

United States Court of Appeals
For the Eighth Circuit
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No. 15-1829
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Corey Odom
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: February 25, 2016
Filed: March 3, 2016
[Unpublished]
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Before BENTON, BOWMAN, and KELLY, Circuit Judges.
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PER CURIAM.
Corey Odom directly appeals after he pled guilty to a federal bank-fraud
conspiracy charge, and the district court1 varied upward from the advisory Guidelines
1
The Honorable Greg Kays, Chief Judge, United States District Court for the
Western District of Missouri.
range to impose a sentence of 63 months in prison and 5 years of supervised release.
Odom’s counsel has moved to withdraw, and in a brief filed under Anders v.
California, 386 U.S. 738 (1967), counsel raises the issues of ineffective assistance of
counsel, the government’s failure to move for a U.S.S.G. § 5K1.1 departure at
sentencing, and the district court’s failure to notify Odom of its intent to vary upward
from the Guidelines range. In a pro se supplemental brief, Odom refers to proposed
Guidelines amendments on white-collar crime.
Odom pled guilty pursuant to a written plea agreement that contained a waiver
of the right to appeal his conviction and sentence, subject to certain exceptions. After
careful de novo review, see United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010)
(standard of review), we will enforce the appeal waiver because the record shows
Odom entered into the plea agreement and its appeal waiver knowingly and
voluntarily, and enforcing the waiver would not cause a miscarriage of justice. The
issues raised in this appeal regarding a section 5K1.1 departure and the proposed
Guidelines amendments fall within the scope of the appeal waiver, and accordingly,
we decline to consider those issues. See United States v. Andis, 333 F.3d 886,
889-90 (8th Cir. 2003) (en banc) (discussing enforcement of appeal waivers).
Further, the issue of ineffective assistance is not properly raised in this direct appeal.
See United States v. Looking Cloud, 419 F.3d 781, 788-89 (8th Cir. 2005). Only one
of the issues raised--failure to notify Odom of intent to vary upward--may fall outside
the scope of the appeal waiver under the illegal-sentence exception, and therefore we
will consider it, but the claim is foreclosed by case law. See Irizarry v. United States,
553 U.S. 708, 714-16 (2008).
Having independently reviewed the record pursuant to Penson v. Ohio, 488
U.S. 75 (1988), we find no nonfrivolous issues for appeal outside the scope of the
appeal waiver. The judgment is affirmed, and we grant counsel leave to withdraw.
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