United States v. Ricky Hicks , 436 F. App'x 723 ( 2011 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 11-1886
    ___________
    United States of America,               *
    *
    Appellee,                  * Appeal from the United States
    * District Court for the
    v.                                * Western District of Missouri.
    *
    Ricky P. Hicks,                         * [UNPUBLISHED]
    *
    Appellant.                 *
    ___________
    Submitted: November 1, 2011
    Filed: November 2, 2011
    ___________
    Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
    ___________
    PER CURIAM.
    Pursuant to a written plea agreement that contained an appeal waiver, Ricky P.
    Hicks pled guilty to conspiring to distribute methamphetamine mixture, in violation
    of 
    21 U.S.C. §§ 841
    (a)(1) and 846. The district court1 imposed a sentence of 84
    months in prison, above the Guidelines range of 24-30 months, but below the 20-year
    statutory maximum, see 
    21 U.S.C. § 841
    (b)(1)(C). Hicks’s counsel seeks to withdraw
    and has filed a brief under Anders v. California, 
    386 U.S. 738
     (1967), in which she
    1
    The Honorable Greg Kays, United States District Judge for the Western
    District of Missouri.
    questions whether this court should enforce the appeal waiver. Hicks has filed a pro
    se brief arguing, among other things, that his counsel was ineffective.
    This court concludes that Hicks’s claim of ineffective assistance of counsel is
    not barred by the appeal waiver, but also is not appropriate for consideration on direct
    appeal. See United States v. McAdory, 
    501 F.3d 868
    , 872 (8th Cir. 2007). This court
    further concludes that the appeal waiver should be enforced as to all other issues in
    this appeal. See United States v. Andis, 
    333 F.3d 886
    , 889-92 (8th Cir. 2003) (en
    banc) (setting forth criteria for enforcing appeal waiver); see also United States v.
    Estrada-Bahena, 
    201 F.3d 1070
    , 1071 (8th Cir. 2000) (per curiam) (enforcing appeal
    waiver in Anders case).
    This court independently reviewed the record under Penson v. Ohio, 
    488 U.S. 75
    , 80 (1988) and found no nonfrivolous issue not covered by the appeal waiver.
    Accordingly, this court declines to consider Hicks’s ineffective-assistance claim on
    direct appeal; dismisses the appeal; and grants counsel leave to withdraw, subject to
    her informing Hicks about procedures for seeking rehearing or filing a petition for
    certiorari.
    ______________________________
    -2-
    

Document Info

Docket Number: 11-1886

Citation Numbers: 436 F. App'x 723

Judges: Arnold, Benton, Murphy, Per Curiam

Filed Date: 11/2/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023