United States v. Jason Petersen , 673 F. App'x 604 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3205
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jason Bradford Petersen
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: January 18, 2017
Filed: January 23, 2017
[Unpublished]
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Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Jason Bradford Peterson pled guilty to distribution of child pornography
pursuant to a plea agreement. He appeals the district court’s1 below-Guidelines
1
The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
sentence, arguing the court’s imposition of an increase in his offense level under
U.S.S.G. § 2G2.2(b)(3)(B) (5-level increase for distribution of child pornography in
exchange for a thing of value) constituted impermissible double-counting, as the
underlying offense involved distribution. His counsel has moved to withdraw and
has filed a brief under Anders v. California, 386 U.S. 738 (1967). In his supplemental
brief, Peterson argues that his plea was not knowing or voluntary; that he was rushed
and misled by his attorney; and that he had intended to plead guilty to possession, not
distribution, of child pornography. Having jurisdiction under 28 U.S.C. § 1291, this
court affirms.
The district court did not err because Peterson exchanged videos, which was
not fully accounted for by his underlying distribution offense. See United States v.
Callaway, 762 F.3d 754, 759 (8th Cir. 2014) (procedural errors not objected to at
sentencing are reviewed for plain error); United States v. Hipenbecker, 115 F.3d 581,
583-84 (8th Cir. 1997) (double counting occurs only when applied Guideline
increases punishment on account of kind of harm already fully accounted for by
another part of Guidelines). Peterson’s argument that his plea agreement was not
knowing or voluntary is not cognizable on direct appeal because he did not move to
withdraw his guilty plea in the district court. See United States v. Foy, 617 F.3d
1029, 1033-34 (8th Cir. 2010) (to extent defendant presented argument to establish
his plea was unknowing or involuntary, such claim would not be cognizable on direct
appeal where he failed to move in district court to withdraw his guilty plea). To the
extent Peterson argues counsel was ineffective, this court declines to address the
claim. See United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir.
2006) (ineffective-assistance claims are usually best litigated in collateral
proceedings, where record can be properly developed). An independent review of the
record pursuant to Penson v. Ohio, 488 U.S. 75 (1988) reveals no non-frivolous
issues for appeal.
The judgment is affirmed and counsel’s motion to withdraw is granted.
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