United States v. Joel John Virtue

United States Court of Appeals
For the Eighth Circuit
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No. 16-1702
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Joel John Virtue,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: December 14, 2016
Filed: January 13, 2017
[Unpublished]
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Before COLLOTON, MURPHY and GRUENDER, Circuit Judges.
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PER CURIAM.
Joel Virtue appeals after he pleaded guilty to bank fraud and the district court1
sentenced him to a prison term below the advisory guideline range. His counsel has
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
moved for leave to withdraw and filed a brief under Anders v. California, 386 U.S.
738 (1967), discussing the reasonableness of Virtue’s sentence. We struck counsel’s
first brief and directed him to file a renewed Anders brief to comply with the direction
of Evans v. Clarke, 868 F.2d 267, 268 (8th Cir. 1989), and Robinson v. Black, 812
F.2d 1084, 1086 (8th Cir. 1987). Virtue also has filed a pro se brief, asserting
ineffective-assistance of counsel claims, and arguing that he is innocent, that he
should have received a downward departure based on substantial assistance, and that
his sentence is unreasonably disproportionate to his co-conspirators’ sentences. He
has also filed a motion requesting that this court issue an order directing the
government to return certain files.
We conclude that Virtue’s sentence is not substantively unreasonable. The
district court appropriately considered sentencing disparities in weighing the factors
under 18 U.S.C. § 3553(a) and sentenced Virtue below the advisory range. See
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (discussing
ways in which district court may abuse its discretion in making sentencing decision);
see also United States v. McCauley, 715 F.3d 1119, 1127 (8th Cir. 2013) (noting that
when district court has varied below Guidelines range, it is “nearly inconceivable”
that court abused its discretion in not varying downward further). We decline to
consider Virtue’s ineffective-assistance claims on direct appeal. See United States
v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir. 2006) (ineffective-assistance
claims are usually best litigated in collateral proceedings, where record can be
properly developed). Further, we conclude that Virtue’s innocence argument is
refuted by statements he made during his change-of-plea hearing, see Nguyen v.
United States, 114 F.3d 699, 703 (8th Cir. 1997) (defendant’s representations during
plea-taking carry strong presumption of verity), and that the government acted within
its discretion in declining to move for a substantial-assistance departure, see United
States v. Wolf, 270 F.3d 1188, 1190 (8th Cir. 2001) (government has no duty to move
for substantial-assistance departure unless plea agreement creates such duty).
Virtue’s request for the return of certain files is not the proper subject of a direct
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appeal. Cf. Fed. R. Crim. P. 41(g) (discussing procedure for seeking return of
property).
Finally, we have independently reviewed the record under Penson v. Ohio, 488
U.S. 75 (1988), and have found no nonfrivolous issues for appeal. Accordingly, we
deny Virtue’s motion for the return of files, grant counsel’s motion to withdraw, and
affirm the judgment.
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