United States v. Jerry Wheeler

• Court: Court of Appeals for the Eighth Circuit
• Decided: September 16, 2024
• Docket: 23-3604
• Status: Unpublished

Opinion

United States Court of Appeals For the Eighth Circuit ___________________________

No. 23-3604 ___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Jerry R. Wheeler, also known as Love, also known as Jerry Wheeler

lllllllllllllllllllllDefendant - Appellant ____________

Appeal from United States District Court for the Western District of Missouri - Springfield ____________

Submitted: September 11, 2024 Filed: September 16, 2024 [Unpublished] ____________

Before BENTON, KELLY, and ERICKSON, Circuit Judges. ____________

PER CURIAM.

Jerry Wheeler appeals the sentence imposed by the district court1 after he pleaded guilty to drug and firearm offenses pursuant to a plea agreement containing

1 The Honorable Roseann A. Ketchmark, United States District Judge for the Western District of Missouri. an appeal waiver. His counsel has requested leave to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967), challenging the sentence as substantively unreasonable and asserting that plea counsel was ineffective.

We decline to consider Wheeler’s claim of ineffective assistance of counsel in this direct appeal. See United States v. Hernandez, 281 F.3d 746, 749 (8th Cir. 2002) (in general, ineffective-assistance claim is not cognizable on direct appeal; such claim is properly raised in 28 U.S.C. § 2255 action). Upon careful review, we conclude that the appeal waiver is valid, enforceable, and applicable to the remaining issue raised in this appeal. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (de novo review of validity and applicability of appeal waiver); United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (appeal waiver will be enforced if appeal falls within scope of waiver, defendant knowingly and voluntarily entered into plea agreement and waiver, and enforcing waiver would not result in miscarriage of justice).

We have independently reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), and have found no non-frivolous issues for appeal falling outside the scope of the appeal waiver. Accordingly, we dismiss the appeal based on the appeal waiver and grant counsel leave to withdraw. ______________________________

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