United States v. Leah Binney, No. 18-2002 (8th Cir. 2018)

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Court Description: Per Curiam - Before Benton, Bowman and Erickson, Circuit Judges] Criminal case - Sentencing. Anders case. Defendant's claim that her guilty plea was not knowing and voluntary is rejected as the record does not support her argument that she would not have pleaded guilty but for counsel's advice concerning her likely sentence; challenge to sentence was barred by defendant's appeal waiver; claim of ineffective assistance of counsel would not be considered on direct appeal.
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 18-2002 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Leah Renee Binney lllllllllllllllllllllDefendant - Appellant ____________ Appeal from United States District Court for the Western District of Missouri - Springfield ____________ Submitted: November 22, 2018 Filed: December 11, 2018 [Unpublished] ____________ Before BENTON, BOWMAN, and ERICKSON, Circuit Judges. ____________ PER CURIAM. Leah Renee Binney pled guilty to a money-laundering charge pursuant to an appeal waiver. She appeals the below Guidelines-range sentence the district court1 1 The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri. imposed. Having jurisdiction under 28 U.S.C. § 1291, this court enforces the appeal waiver and dismisses the appeal. Counsel has moved for leave to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), acknowledging an appeal waiver in Binney’s plea agreement, and asserting the district court misapplied the Guidelines. Binney has not filed a pro se brief, but her notice of appeal asserts that her guilty plea was not knowing and voluntary because counsel misadvised her as to the sentence she would likely receive as a result of the plea agreement. This court concludes that Binney’s voluntariness claim lacks merit, because the record does not support the contention that she would not have pled guilty but for counsel’s advice. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (de novo review of validity and applicability of appeal waiver). At the plea hearing, Binney confirmed that she understood the plea agreement, including the maximum penalties and the appeal waiver; and that no one had made any promises to induce her to plead guilty. See Fed. R. Crim. P. 52(a) (error that does not affect substantial rights must be disregarded); Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997) (defendant’s statements made during plea hearing carry strong presumption of verity); cf. Walker v. United States, 810 F.3d 568, 578 (8th Cir.), cert. denied, 136 S. Ct. 2042 (2016) (counsel’s error about sentencing range or likely punishment does not render plea involuntary where defendant was informed of maximum sentence). As the appeal waiver is valid, counsel’s challenge to the sentence is barred, because it falls within the scope of the appeal waiver. See 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 waiver and plea agreement, and enforcing waiver would not result in miscarriage of justice). To the extent Binney has raised ineffective-assistance-of-counsel claims that require development of matters outside the record, this court declines to address them -2- in this direct appeal. See United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir. 2006) (ineffective-assistance claims are best litigated in collateral proceedings, where record can be properly developed). This court has reviewed the record independently under Penson v. Ohio, 488 U.S. 75 (1988), and has found no non-frivolous issues. The appeal is dismissed, and counsel’s motion to withdraw is granted. ______________________________ -3-