United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2096
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Kenneth Robert Simpson, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 4, 2011
Filed: October 7, 2011
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Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
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PER CURIAM.
Pursuant to a written plea agreement that contained an appeal waiver, Kenneth
Simpson pleaded guilty to receiving child pornography, in violation of 18 U.S.C.
§ 2252A(a)(2). The district court1 sentenced him to 60 months in prison, the statutory
minimum. On appeal, his counsel has moved to withdraw, and has filed a brief under
Anders v. California, 386 U.S. 738 (1967). Simpson has filed a pro se supplemental
brief suggesting, inter alia, that his counsel was ineffective. He has also filed a pro
se motion in this court.
1
The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
We conclude that Simpson’s claim of ineffective assistance of counsel is not
barred by the plea agreement, but also is not appropriate for consideration on direct
appeal. See United States v. Looking Cloud, 419 F.3d 781, 788 (8th Cir. 2005)
(ineffective assistance of counsel claims nearly always require development of facts
outside record, which makes those claims generally inappropriate for direct appeal
and better raised in habeas proceeding). We further conclude that the appeal waiver
should be enforced as to all other issues in this appeal. See United States v. Andis,
333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (setting forth criteria for enforcing
appeal waiver); see also United States v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th
Cir. 2000) (per curiam) (enforcing appeal waiver in Anders case).
Having independently reviewed the record under Penson v. Ohio, 488 U.S. 75,
80 (1988), we have found no non-frivolous issues not covered by the appeal waiver.
Accordingly, we decline to consider Simpson’s ineffective-assistance claim on direct
appeal, we dismiss this appeal based upon the appeal waiver, and we deny Simpson’s
pending motion as moot. We also grant counsel leave to withdraw, subject to him
informing Simpson about procedures for seeking rehearing or filing a petition for
certiorari.
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