Court Description: Per Curiam - Before Loken, Benton and Kelly, Circuit Judges] Criminal case - Criminal law and sentencing. Defendant could not challenge the voluntariness of his plea as he failed to move in the district court to withdraw his guilty plea; district court did not err in relying on unobjected-to portions of the PSR in setting defendant's offense level; sentence was not an upward-departure and notice of intent to depart was not required; sentence did not exceed the statutory maximum; within-guidelines sentence was substantively reasonable; claims of ineffective assistance would not be considered on direct appeal.
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 16-1873 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. David Zouck lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Western District of Missouri - Springfield ____________ Submitted: January 17, 2017 Filed: January 19, 2017 [Unpublished] ____________ Before LOKEN, BENTON, and KELLY, Circuit Judges. ____________ PER CURIAM. David Zouck appeals his conviction and the sentence imposed by the district court following his guilty plea to conspiring to distribute 500 grams or more of a 1 1 The Honorable Roseann A. Ketchmark, United States District Judge for the Western District of Missouri. substance containing methamphetamine, and to distributing 5 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1). We affirm. First, Zouck argues that his plea was involuntary and unknowing, but he did not move in the district court to withdraw his plea. See United States v. Umanzor, 617 F.3d 1053, 1060-61 (8th Cir. 2010). Second, he argues the district court erroneously calculated his offense level based on inaccurate information in the presentence report (PSR), but the court did not err in relying on PSR recitations to which Zouck did not object. See United States v. Wiggins, 747 F.3d 959, 963 (8th Cir. 2014) (standard of review); United States v. Munoz, 324 F.3d 987, 991-92 (8th Cir. 2003). Third, he argues the district court erred by failing to give notice of its intent to depart upward, but the sentence imposed was not an upward departure from the applicable Sentencing Guidelines range. Cf. Fed. R. Crim. P. 32(h) (notice requirement). Fourth, Zouck is incorrect that his concurrent 132-month prison sentences were beyond the maximum authorized by law. See 21 U.S.C. § 841(b)(1)(A), (b)(1)(B); United States v. Bossany, 678 F.3d 603, 606 (8th Cir. 2012) (standard of review). Fifth, we reject Zouck’s claim that the withinGuidelines-range sentence was unreasonable. See United States v. Black, 670 F.3d 877, 882 (8th Cir. 2012) (standard of review). Last, we decline to address on direct appeal the claim that counsel provided ineffective assistance. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003). Accordingly, we affirm. ____________________________ -2-
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