United States v. Curtis Cole , 592 F. App'x 542 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-2454
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Curtis J. Cole,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Western District of Arkansas - El Dorado
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Submitted: February 5, 2015
Filed: February 9, 2015
[Unpublished]
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Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
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PER CURIAM.
Curtis Cole directly appeals after he pled guilty to a drug-related charge, and
the district court1 sentenced him to a prison term at the low end of the calculated
1
The Honorable Susan O. Hickey, United States District Judge for the Western
District of Arkansas.
Guidelines range. His counsel has moved to withdraw, and has filed a brief under
Anders v. California, 386 U.S. 738 (1967), acknowledging an appeal waiver in Cole’s
plea agreement, and otherwise challenging Cole’s sentence. Cole has moved for
appointment of new counsel, asserting that he received ineffective assistance of
counsel.
Upon careful de novo review, we conclude that the appeal waiver in the plea
agreement is enforceable because this appeal falls within the scope of the waiver,
Cole entered into both the plea agreement and the appeal waiver knowingly and
voluntarily, and no miscarriage of justice will result from enforcing the appeal
waiver. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (standard of
review); United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc)
(discussing enforceability of appeal waivers). To the extent Cole has attempted to
assert an ineffective-assistance claim on direct appeal, we decline to consider it. See
United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003) (appellate court
ordinarily defers ineffective-assistance claims to 28 U.S.C. § 2255 proceedings). In
addition, having independently reviewed the record under Penson v. Ohio, 488 U.S.
75 (1988), we find no non-frivolous issues outside the scope of the appeal waiver.
Accordingly, we dismiss this appeal based upon the appeal waiver, we grant
counsel’s motion for leave to withdraw, and we deny Cole’s motion for appointment
of new counsel.
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