United States v. Constantino Eredia , 578 F. App'x 620 ( 2014 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 13-3538
    ___________________________
    United States of America,
    lllllllllllllllllllll Plaintiff - Appellee,
    v.
    Constantino Eredia,
    lllllllllllllllllllll Defendant - Appellant.
    ____________
    Appeal from United States District Court
    for the Western District of Missouri - Kansas City
    ____________
    Submitted: September 19, 2014
    Filed: October 2, 2014
    [Unpublished]
    ____________
    Before COLLOTON, BOWMAN, and SHEPHERD, Circuit Judges.
    ____________
    PER CURIAM.
    Constantino Eredia directly appeals after the district court1 revoked his
    supervised release and sentenced him above the Chapter 7 advisory Guidelines range
    1
    The Honorable Gary A. Fenner, United States District Judge for the Western
    District of Missouri.
    to the statutory maximum of 36 months in prison. His counsel has filed a brief,
    arguing (1) that Eredia’s revocation sentence was unreasonable, and (2) that Eredia
    received ineffective assistance of counsel in the revocation proceedings. His counsel
    has also moved for leave to withdraw.
    Upon careful review, we conclude that the district court neither erred
    procedurally nor made a substantively unreasonable decision, and thus the court did
    not impose an unreasonable revocation sentence. See United States v. Feemster, 
    572 F.3d 455
    , 461 (8th Cir. 2009) (en banc) (describing appellate review of sentencing
    decisions); see also United States v. Young, 
    640 F.3d 846
    , 848 (8th Cir. 2011) (per
    curiam) (same review standard applies for revocation sentence as for initial sentence).
    Next, we decline to consider Eredia’s ineffective-assistance argument on direct
    appeal, because ineffective-assistance claims ordinarily are deferred to 
    28 U.S.C. § 2255
     proceedings. See United States v. McAdory, 
    501 F.3d 868
    , 872-72 (8th Cir.
    2007).
    As for counsel’s motion to withdraw, we conclude that allowing counsel to
    withdraw at this time would not be consistent with the Eighth Circuit’s 1994
    Amendment to Part V of the Plan to Implement The Criminal Justice Act of 1964.
    We therefore deny counsel’s motion to withdraw as premature, without prejudice to
    counsel refiling the motion upon fulfilling the duties set forth in the Amendment.
    COLLOTON, Circuit Judge, concurring in part and dissenting in part.
    I concur in the opinion affirming the judgment, but consistent with the
    longtime practice of this court, I would grant counsel’s motion to withdraw, subject
    to counsel informing Eredia about the procedures for filing a petition for writ of
    cetiorari pro se. E.g., United States v. Oberg, 530 F. App’x 604, 605 (8th Cir. 2013);
    United States v. Lewis, 530 F. App’x 602, 603 (8th Cir. 2013); United States v. Stone,
    529 F. App’x 800, 801 (8th Cir. 2013); United States v. Cortes, 424 F. App’x 607,
    -2-
    608 (8th Cir. 2011). Part V of this court’s Plan to Implement the Criminal Justice Act
    of 1964 contemplates that the court will grant counsel’s motion to withdraw before
    counsel advises the defendant of the procedures for filing a petition for writ of
    certiorari pro se: “If the motion to withdraw is granted, counsel shall promptly advise
    the defendant of the procedures for filing a petition for writ of certiorari pro se,
    following which counsel’s representation of the defendant shall terminate.” Plan to
    Implement the Criminal Justice Act of 1964, Part V (Dec. 6, 1994) (emphasis added).
    The Supreme Court in Anders v. California, 
    386 U.S. 738
     (1967), directed that
    counsel who believes an appeal is frivolous should file a motion to withdraw together
    with a brief that refers to anything in the record that arguably might support an
    appeal. 
    Id. at 744
    . When the motion to withdraw is filed in a case governed by
    Anders, the case is pending before the court of appeals, and there is still potential that
    the court will deny the motion to withdraw and order adversarial briefing if the court
    identifies a non-frivolous issue. Penson v. Ohio, 
    488 U.S. 75
    , 82-84 (1988). It would
    be premature and confusing for counsel—at the time a brief and motion to withdraw
    are filed in the court of appeals—to advise the appellant of the procedures for filing
    a petition for writ of certiorari pro se at the Supreme Court. But if this court refuses
    to grant counsel’s motion to withdraw after the court determines that the appeal is
    frivolous, then counsel will be required to file two motions to withdraw in every
    Anders case—one with the Anders brief and another after the court of appeals affirms
    the judgment. I do not favor that approach and would instead follow this court’s
    traditional practice of granting the motion to withdraw at the time of judgment,
    subject to counsel thereafter providing advice to his client about pro se filings as
    described in this circuit’s plan to implement the Criminal Justice Act.
    ______________________________
    -3-
    

Document Info

Docket Number: 13-3538

Citation Numbers: 578 F. App'x 620

Filed Date: 10/2/2014

Precedential Status: Non-Precedential

Modified Date: 1/13/2023