United States v. Kingsley Onumbu, No. 14-2567 (8th Cir. 2014)
Annotate this CaseCourt Description: Criminal case - Sentencing. Anders case. Because defendant did not move to withdraw his guilty plea in the district court, the court could not consider his claim that his plea was involuntary; claims of ineffective-assistance of counsel should be brought in a Section 2255 proceeding; sentence was not substantively unreasonable.
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 14-2567 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Kingsley Onumbu lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the District of Nebraska - Omaha ____________ Submitted: December 17, 2014 Filed: December 22, 2014 [Unpublished] ____________ Before SMITH, BOWMAN, and COLLOTON, Circuit Judges. ____________ PER CURIAM. Kingsley Onumbu directly appeals after imposition of sentence by the district court upon his guilty plea to a fraud offense. Counsel moves to withdraw, and in a 1 1 The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska. brief under Anders v. California, 386 U.S. 738 (1967), he argues that the sentence is unreasonable. Onumbu has filed a supplemental brief, in which he challenges the validity of his plea, and argues that he received ineffective assistance of counsel. For the reasons discussed below, each of these arguments is unavailing. First, Onumbu’s challenge to the voluntariness of his guilty plea is not cognizable in this direct appeal, because he did not move to withdraw his plea below. See United States v. Umanzor, 617 F.3d 1053, 1060 (8th Cir. 2010) (defendant may not challenge voluntariness of guilty plea for first time on direct appeal if he did not move to withdraw plea in district court). Second, his ineffective-assistance claims are more properly raised in proceedings under 28 U.S.C. § 2255, and we decline to consider those claims in this appeal. See United States v. McAdory, 501 F.3d 868, 872-73 (8th Cir. 2007) (ineffective-assistance claims are ordinarily deferred to § 2255 proceedings). Third, after careful review, we conclude that the sentence is not unreasonable. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (appellate review of sentencing decision). Finally, having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80 (1988), we find no nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw, and we affirm. ______________________________ -2-
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