UNITED STATES v. JOHNSON (2021)

[Unpublished]

Anthony Johnson pleaded guilty to being a felon in possession of a firearm. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). As part of the plea agreement, he “waive[d] his right to appeal his sentence” unless, as relevant here, it exceeded the statutory maximum. The district court ¹ gave him a 90-month prison sentence, which is below the statutory maximum. See id. § 924(a)(2) (setting the maximum sentence at 10 years). In an Anders brief, Johnson's counsel challenges the substantive reasonableness of the sentence and requests permission to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In a pro se supplemental brief, Johnson separately argues that counsel's ineffectiveness caused the district court to miss certain mitigating factors and impose a substantively unreasonable sentence.

Johnson's sentencing challenges are foreclosed by the appeal waiver, which he entered into knowingly and voluntarily. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (reviewing this issue de novo); United States v. Andis, 333 F.3d 886, 889–92 (8th Cir. 2003) (en banc) (explaining that an appeal waiver will be enforced if the appeal falls within the scope of the waiver, the defendant knowingly and voluntarily entered into the plea agreement and the waiver, and enforcing the waiver would not result in a miscarriage of justice). The ineffective-assistance-of-counsel claim, by contrast, is not covered by the appeal waiver, but it would be premature to consider it now without an adequately developed record. See United States v. Ramirez-Hernandez, 449 F.3d 824, 826–27 (8th Cir. 2006) (explaining that this type of claim is “usually best litigated in collateral proceedings”).

Finally, we have independently reviewed the record and conclude that no other non-frivolous issues exist. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). Accordingly, we dismiss the appeal and grant counsel permission to withdraw.

FOOTNOTES

1.   The Honorable David Gregory Kays, United States District Judge for the Western District of Missouri.

PER CURIAM.