UNITED STATES v. AARON (2018)

[Unpublished]

Sanjuana Aaron directly appeals after pleading guilty in the district court ¹ to aggravated identity theft and conspiracy to defraud the government. Her counsel has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Aaron has also filed a pro se brief.

After careful review, we conclude that Aaron’s arguments lack merit.² We conclude that her challenge to the validity of the indictment is foreclosed by her guilty plea, see United States v. Muratella, 843 F.3d 780, 783 (8th Cir. 2016), cert. denied, ––– U.S. ––––, 137 S.Ct. 1605, 197 L.Ed.2d 730 (2017), and we find no merit to her newly asserted challenges to the plea colloquy and the validity of her guilty plea, see United States v. Dominguez Benitez, 542 U.S. 74, 76, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (stating that claims of Fed. R. Crim. P. 11 error not raised in the district court are reviewed for plain error); United States v. Foy, 617 F.3d 1029, 1033-34 (8th Cir. 2010). Even assuming, as Aaron claims, she was not afforded an opportunity to review the presentence report (PSR) with counsel before sentencing, the district court carefully reviewed it with her at sentencing, and she has not shown she was prejudiced. See Fed. R. Crim. P. 52(a) (setting forth the harmless-error standard); cf. United States v. Prado, 204 F.3d 843, 845 (8th Cir. 2000) (concluding that the district court’s failure to verify that a defendant had read the PSR and discussed it with counsel was waived and harmless where the defendant did not request additional time to review the PSR and did not describe how he was prejudiced). We find no error in the district court’s guidelines calculations, see United States v. Turner, 781 F.3d 374, 393 (8th Cir. 2015) (stating the standard of review), and we decline to consider Aaron’s claims of ineffective assistance of counsel on direct appeal, see United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir. 2006) (stating that ineffective-assistance claims are usually best litigated in collateral proceedings, where the record can be properly developed).

Having independently reviewed the record under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous issues for appeal. Accordingly, we affirm the judgment, and we grant counsel’s motion to withdraw.

FOOTNOTES

1.   The Honorable Susan O. Hickey, United States District Judge for the Western District of Arkansas.

2.   We decline to enforce the appeal waiver in Aaron’s plea agreement. See United States v. Boneshirt, 662 F.3d 509, 515-16 (8th Cir. 2011).

PER CURIAM.