United States v. Jaisankar Marimuthu , 395 F. App'x 313 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2014
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
Jaisankar Marimuthu, * [UNPUBLISHED]
*
Appellant. *
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Submitted: September 28, 2010
Filed: October 6, 2010
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Before BYE, BOWMAN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Pursuant to a written plea agreement containing an appeal waiver, Jaisankar
Marimuthu pleaded guilty to conspiracy to commit computer and securities fraud, 18
U.S.C. § 371, and aggravated identity theft, 18 U.S.C. §§ 1028A and 2. The District
Court1 sentenced Marimuthu to a total of eighty-one months in prison and three years
of supervised release. On appeal, his counsel has moved to withdraw and has filed a
brief under Anders v. California, 386 U.S. 738 (1967), raising as issues whether the
appeal waiver was valid, whether a Guidelines enhancement was proper, whether the
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
court considered the 18 U.S.C. § 3553(a) factors, and whether counsel provided
effective assistance. Marimuthu has submitted a supplemental brief arguing that the
court treated the Guidelines as mandatory, the sentence was unreasonable, and his
attorney was ineffective.
We will enforce the appeal waiver in this case because Marimuthu’s issues on
appeal—except for the ineffective-assistance claim—fall within the scope of the
waiver; the record shows that Marimuthu entered into both the plea agreement and the
waiver knowingly and voluntarily; and enforcing the appeal waiver would not result
in a miscarriage of justice. See United States v. Andis, 333 F.3d 886, 889–92 (8th
Cir.) (en banc) (explaining that this Court should enforce an appeal waiver and
dismiss the appeal where the issues on appeal fall within the scope of the waiver, both
the plea agreement and the waiver were entered into knowingly and voluntarily, and
no miscarriage of justice would result from enforcing the waiver), cert. denied, 540
U.S. 997 (2003); see also United States v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th
Cir. 2000) (per curiam) (enforcing an appeal waiver in an Anders case). We decline
to consider the ineffective-assistance claim on direct appeal. See United States v.
Cain, 134 F.3d 1345, 1352 (8th Cir. 1998) (noting that an ineffective-assistance claim
should be raised in a 28 U.S.C. § 2255 proceeding).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75(1988), we have found no nonfrivolous issues that are not covered by the appeal
waiver. Accordingly, we grant counsel’s motion to withdraw, and we dismiss the
appeal.
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