United States v. Kermit Comstock

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2344
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Kermit Billy Comstock, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 29, 2007
Filed: May 30, 2007
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Before WOLLMAN, MURPHY, and BYE, Circuit Judges.
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PER CURIAM.
Kermit Billy Comstock appeals the 18-month prison sentence imposed by the
district court1 upon his guilty plea, entered pursuant to a written plea agreement, to
one count of possessing pseudoephedrine knowing it would be used to manufacture
methamphetamine, in violation of 21 U.S.C. § 841(c)(2). His counsel has filed a brief
under Anders v. California, 386 U.S. 738 (1967), arguing that the district court erred
in failing to find that there was a sufficient factual basis upon which to accept the
guilty plea, as required by Federal Rule of Criminal Procedure 11(b)(3). Counsel also
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
moves to withdraw. Comstock has filed a pro se supplemental brief, which lists four
“facts” that we construe as arguments. One of the arguments appears to be a claim of
ineffective assistance of counsel, but this direct criminal appeal is not the proper
vehicle to raise such an argument; rather, an ineffective-assistance argument should
be raised (if at all) in a 28 U.S.C. § 2255 proceeding, where the record can be properly
developed. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003).
Comstock’s remaining arguments are refuted by his sworn plea-hearing testimony, cf.
Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court
carry a strong presumption of verity.”), or are irrelevant to the legitimacy of his
conviction and sentence.
As to the Anders brief argument, we conclude that the district court complied
with Rule 11(b)(3): the government recited what its evidence would prove with
respect to the charge against Comstock, Comstock agreed that the government’s
recital of the evidence was substantially correct, and the evidence showed that
Comstock had assisted others in manufacturing methamphetamine by providing
pseudoephedrine and acting as a lookout, and that he had possessed pseudoephedrine
and other methamphetamine-manufacturing tools at the time of his arrest. See United
States v. Brown, 331 F.3d 591, 594 (8th Cir. 2003) (factual basis for plea of guilty is
established when court determines there is sufficient evidence at time of plea upon
which court may reasonably determine that defendant likely committed offense; this
determination is satisfied if transcript describes acts to which defendant pleaded
guilty); cf. United States v. McFadden, 238 F.3d 198, 200-01 (2d Cir. 2001) (factual
basis sufficiently established where court paraphrased indictment, defendant admitted
conduct described therein, and court confirmed defendant’s understanding of plea
agreement).2
2
Moreover, Comstock did not object below and there is no indication that his
decision to plead guilty was affected by any possible error under Rule 11(b)(3). See
United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (defendant seeking
reversal based on Rule 11 plain error must show reasonable probability that, but for
error, he would not have entered plea).
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After reviewing the record independently under Penson v. Ohio, 488 U.S. 75(1988), and finding no non-frivolous issues, we affirm the judgment of the district
court and grant counsel’s motion to withdraw on condition that counsel inform
appellant about the procedures for filing petitions for rehearing and for certiorari.
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