United States v. James Butchee ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-3498
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
James Marione Butchee, also known as Knowledge
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Fargo
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Submitted: August 14, 2019
Filed: August 22, 2019
[Unpublished]
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Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
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PER CURIAM.
James Butchee appeals after he signed a Federal Rule of Criminal Procedure
11(c)(1)(C) plea agreement containing an appeal waiver, entered a guilty plea, and
was sentenced by the district court1 in accordance with the plea agreement. In a brief
filed under Anders v. California, 386 U.S. 738 (1967), his counsel acknowledges the
appeal waiver, and presents Butchee’s view that his base offense level was
miscalculated. Counsel has also moved for leave to withdraw. In a pro se brief,
Butchee argues that he was erroneously classified as a career offender, and that
counsel was ineffective.
We decline, on direct appeal, to consider any claims of ineffective assistance
of counsel. See United States v. Hernandez, 281 F.3d 746, 749 (8th Cir. 2002) (in
general, ineffective-assistance claim is not cognizable on direct appeal; such claim
is properly raised in 28 U.S.C. § 2255 action). As to the remaining issues, we enforce
the appeal waiver. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (de
novo review of validity and applicability of appeal waiver); United States v. Andis,
333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (appeal waiver will be enforced if
appeal falls within scope of waiver, defendant knowingly and voluntarily entered into
plea agreement and waiver, and enforcing waiver would not result in miscarriage of
justice).
Having reviewed the record pursuant to Penson v. Ohio, 488 U.S. 75 (1988),
we find no non-frivolous issues for appeal outside the scope of the appeal waiver.
Accordingly, we dismiss this appeal, and we grant counsel leave to withdraw.
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1
The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.
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