United States v. Royal Adams , 332 F. App'x 352 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3671
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Royal Adams, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: June 11, 2009
Filed: June 16, 2009
___________
Before RILEY, SMITH, and BENTON, Circuit Judges.
___________
PER CURIAM.
Royal Adams challenges the sentence the district court1 imposed upon his guilty
plea to filing false income tax returns, in violation of 26 U.S.C. § 7206(1). Adams’s
counsel has moved to withdraw, and has filed a brief under Anders v. California, 386
U.S. 738 (1967), arguing that § 7206(1) is unconstitutional, that the district court
abused its discretion in sentencing Adams, and that Adams received ineffective
assistance of counsel below.
1
The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
Pursuant to his written plea agreement, Adams waived “all rights to appeal all
sentencing issues” if the court accepted his plea, applied the plea-agreement
recommendations, and sentenced Adams within the applicable Guidelines range. We
enforce this appeal waiver to preclude any argument that the court abused its
discretion in sentencing him: (1) the court accepted Adams’s plea, applied the plea
agreement stipulations, and sentenced Adams within the resulting Guidelines range,
thereby satisfying the conditions precedent to the appeal waiver; (2) the plea hearing
colloquy shows that Adams knowingly and voluntarily entered into the plea agreement
and the appeal waiver; (3) the sentencing argument falls within the scope of the appeal
waiver; and (4) no injustice would result from enforcing the appeal waiver. See
United States v. Andis, 333 F.3d 886, 998-92 (8th Cir. 2003) (en banc) (discussing
enforcement of appeal waivers). We decline to consider the constitutional challenge
to § 7206, raised for the first time on appeal. See Liberty State Bank v. Minn. Life &
Health Ins. Guar. Ass’n, 149 F.3d 832, 834 (8th Cir. 1998) (newly raised
constitutional arguments are not considered absent exceptional circumstances).
The claim of ineffective assistance of counsel must be raised (if at all) in a 28 U.S.C.
§ 2255 motion. See United States v. Ramirez-Hernandez, 449 F.3d 824, 827 (8th Cir.
2006). Reviewing the record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we find
no nonfrivolous issues that are not waived by the sentencing appeal waiver.
We grant counsel’s motion to withdraw, we deny Adams’s motion for
appointment of new counsel, and we affirm.
______________________________
-2-