United States v. Arturo Tapia-Salazar

552 F. App'x 608

• Court: Court of Appeals for the Eighth Circuit
• Decided: February 6, 2014
• Docket: 13-1865
• Status: Unpublished

Opinion

PER CURIAM.

Arturo Tapia-Salazar directly appeals after he pled guilty to charges involving possession of marijuana and firearms, and the district court 1 sentenced him to a prison term below the calculated Guidelines range. In a brief filed under Anders v. California, 886 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel seeks leave to withdraw and suggests that a partial appeal waiver in Tapia-Salazar’s written plea agreement is enforceable, that there is no issue for appeal outside the scope of the appeal waiver, and that Tapia-Salazar can raise claims of ineffective assistance of counsel in a 28 U.S.C. § 2255 proceeding.

We have carefully reviewed the record to determine whether the appeal waiver is valid, see United States v. Azure, 571 F.3d 769, 772 (8th Cir.2009) (de novo review of record to determine validity of appeal waiver), and whether there is any nonfriv-olous issue for appeal, see Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) (independent review of record in Anders cases). We conclude that the appeal waiver is valid and enforceable, and that there is no nonfrivolous issue appropriate for direct appeal, outside the scope of the appeal waiver. See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir.2003) (en banc) (court should enforce appeal waiver if both waiver and plea agreement were entered into knowingly and voluntarily, appeal is within waiver’s scope, and no miscarriage of justice would result); see also United States v. McAdory, 501 F.3d 868, 872 (8th Cir.2007) (appellate court ordinarily defers ineffective-assistance claims to § 2255 proceedings).

Accordingly, we dismiss this appeal. We also grant counsel’s motion to withdraw.

1 . The Honorable Greg Kays, Chief Judge, United States District Court for the Western District of Missouri.