Court Description: Per Curiam - Before Gruender, Benton and Shepherd, Circuit Judges] Criminal case - Sentencing. Anders case. No error in applying a five-level enhancement for distribution of child pornography in exchange for a thing of value as defendant exchanged videos, and this exchange was not fully accounted for in his underlying distribution offense; challenge to guilty plea was not cognizable on appeal where defendant failed to move in the district court to withdraw the plea; claim of ineffective assistance of counsel would not be considered on direct appeal. [ January 20, 2017
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 16-3205 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Jason Bradford Petersen lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Southern District of Iowa - Davenport ____________ Submitted: January 18, 2017 Filed: January 23, 2017 [Unpublished] ____________ Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges. ____________ PER CURIAM. Jason Bradford Peterson pled guilty to distribution of child pornography pursuant to a plea agreement. He appeals the district court’s1 below-Guidelines 1 The Honorable John A. Jarvey, Chief Judge, United States District Court for the Southern District of Iowa. sentence, arguing the court’s imposition of an increase in his offense level under U.S.S.G. § 2G2.2(b)(3)(B) (5-level increase for distribution of child pornography in exchange for a thing of value) constituted impermissible double-counting, as the underlying offense involved distribution. His counsel has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967). In his supplemental brief, Peterson argues that his plea was not knowing or voluntary; that he was rushed and misled by his attorney; and that he had intended to plead guilty to possession, not distribution, of child pornography. Having jurisdiction under 28 U.S.C. § 1291, this court affirms. The district court did not err because Peterson exchanged videos, which was not fully accounted for by his underlying distribution offense. See United States v. Callaway, 762 F.3d 754, 759 (8th Cir. 2014) (procedural errors not objected to at sentencing are reviewed for plain error); United States v. Hipenbecker, 115 F.3d 581, 583-84 (8th Cir. 1997) (double counting occurs only when applied Guideline increases punishment on account of kind of harm already fully accounted for by another part of Guidelines). Peterson’s argument that his plea agreement was not knowing or voluntary is not cognizable on direct appeal because he did not move to withdraw his guilty plea in the district court. See United States v. Foy, 617 F.3d 1029, 1033-34 (8th Cir. 2010) (to extent defendant presented argument to establish his plea was unknowing or involuntary, such claim would not be cognizable on direct appeal where he failed to move in district court to withdraw his guilty plea). To the extent Peterson argues counsel was ineffective, this court declines to address the claim. See United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir. 2006) (ineffective-assistance claims are usually best litigated in collateral proceedings, where record can be properly developed). An independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75 (1988) reveals no non-frivolous issues for appeal. The judgment is affirmed and counsel’s motion to withdraw is granted. ______________________________ -2-
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