United States v. Kenneth Randolph

United States Court of Appeals
For the Eighth Circuit
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No. 14-2672
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kenneth O. Randolph
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: January 7, 2015
Filed: January 15, 2015
[Unpublished]
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Before WOLLMAN, BYE, and MELLOY, Circuit Judges.
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PER CURIAM.
Kenneth Randolph directly appeals after imposition of sentence by the district
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court upon his guilty plea to being a felon in possession of a firearm. Counsel has
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The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
moved to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738
(1967), arguing that the sentence imposed on Randolph, which represents a variance
above the calculated Guidelines range, is unreasonable. In a supplemental brief,
Randolph challenges the voluntariness of his plea, argues that he received ineffective
assistance of counsel, and contends that the court failed to properly consider the 18
U.S.C. § 3553(a) factors in sentencing him. For the reasons discussed below, each
of these arguments is unavailing.
First, Randolph’s challenge to the voluntariness of his guilty plea is not
cognizable in this direct appeal, because he did not move to withdraw his plea below.
See United States v. Umanzor, 617 F.3d 1053, 1060 (8th Cir. 2010) (defendant may
not challenge voluntariness of guilty plea for first time on direct appeal if he did not
move to withdraw plea in district court). Second, his ineffective-assistance claims are
more properly raised in proceedings under 28 U.S.C. § 2255, and we decline to
consider those claims in this appeal. See United States v. McAdory, 501 F.3d 868,
872-73 (8th Cir. 2007) (ineffective-assistance claims are ordinarily deferred to § 2255
proceedings).
Third, after careful review, see United States v. Feemster, 572 F.3d 455, 461
(8th Cir. 2009) (en banc) (appellate review of sentencing decision), we conclude that
the sentence is not unreasonable. The district court’s comments reflect an
individualized assessment of multiple section 3553(a) factors; and in carefully
explaining its decision to vary upward, the court commented on, among other things,
Randolph’s recidivism, his poor history on supervised release following a prior
federal felon-in-possession sentence, and his substance-abuse issues, as well as the
need to protect the public and effectively deter future criminal conduct. See United
States v. Magnum, 625 F.3d 466, 469-70 (8th Cir. 2010) (where district court
sufficiently explains sentencing decision, appellate court must give due deference to
court’s decision that § 3553(a) factors justify extent of upward variance; upward
variance is reasonable where court makes individualized assessment of § 3553(a)
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factors); cf. United States v. David, 682 F.3d 1074, 1077-78 (8th Cir. 2012) (upward
variance may be warranted where defendant repeats criminal conduct shortly after
completing punishment for previous offense).
Finally, having independently reviewed the record in accordance with Penson
v. Ohio, 488 U.S. 75, 80 (1988), we find no nonfrivolous issues. Accordingly, we
grant counsel’s motion to withdraw. The judgment is affirmed.
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