United States v. Ringling Dan Cohn

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3424
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Ringling Dan Cohn, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 2, 2009
Filed: December 9, 2009
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Before WOLLMAN, RILEY, and SMITH, Circuit Judges.
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PER CURIAM.
Pursuant to a written plea agreement, Ringling Dan Cohn (Cohn) pled guilty to
four counts of bank fraud, in violation of 18 U.S.C. § 1344. After finding that Cohn
had breached the agreement, the district court1 sentenced Cohn to concurrent terms of
96 months in prison and 5 years of supervised release on all four counts. On appeal,
counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967), in which
he argues (1) the court erred in finding that Cohn breached his plea agreement; and
(2) the 96-month prison sentence is unreasonable. Cohn has filed a pro se
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
supplemental brief disputing many of the facts contained in the presentence report and
arguing that counsel rendered ineffective assistance.
Based on the live witness testimony presented at the sentencing hearing, we
find the district court did not err in concluding Cohn breached the plea agreement.
See United States v. Honken, 541 F.3d 1146, 1166 (8th Cir. 2008) (holding a district
court’s determination as to the credibility of a witness is virtually unreviewable on
appeal), petition for cert. filed, (U.S. May 7, 2009) (No. 08-10252); United States v.
Thompson, 403 F.3d 1037, 1039 (8th Cir. 2005) (stating issues pertaining to
interpretation and enforcement of a plea agreement are reviewed de novo). Further,
Cohn’s claim that counsel rendered ineffective assistance is not properly raised in this
direct criminal appeal. See United States v. Ramirez-Hernandez, 449 F.3d 824, 826-
27 (8th Cir. 2006) (concluding ineffective-assistance claims ordinarily should be
raised in 28 U.S.C. § 2255 proceedings).
As to the sentencing issues, we will enforce the appeal waiver. The record
reflects that Cohn understood and voluntarily accepted the terms of the plea
agreement, including the appeal waiver and the provision making the agreement
binding on Cohn if he breached the agreement, and no injustice would result from
enforcing the waiver. See United States v. Sisco, 576 F.3d 791, 798 (8th Cir. 2009)
(enforcing appeal waiver after defendant’s breach where the plea agreement expressly
stated defendant would still be bound by terms of agreement if he breached
agreement); United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc);
United States v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam)
(enforcing appeal waiver in Anders case).
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Finally, having reviewed 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. We affirm the district court’s finding that Cohn breached the plea
agreement, and we dismiss the remainder of the appeal based on the appeal waiver.
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