United States Court of Appeals
For the Eighth Circuit
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No. 21-3411
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Scott Wells, also known as Scott James Wells
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: June 1, 2022
Filed: June 15, 2022
[Unpublished]
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Before SHEPHERD, STRAS, and KOBES, Circuit Judges.
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PER CURIAM.
Scott Wells appeals after he entered a plea under North Carolina v. Alford, 400
U.S. 25 (1970), on the day of trial, to a one-count indictment charging him with
knowingly receiving and distributing child pornography. See 18 U.S.C. § 2252(a)(2),
(b)(1). The district court1 varied downward from the United States Sentencing
Guidelines advisory range, imposing a 168-month prison sentence. Wells’s counsel
has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738
(1967), challenging the prison sentence. In a pro se brief, Wells raises claims of
ineffective assistance of counsel, judicial impropriety, prosecutorial vindictiveness,
and the voluntariness of his plea.
We decline to address Wells’s ineffective-assistance claims on direct appeal,
as these claims are best addressed in collateral proceedings. See United States v.
Ramirez-Hernandez, 449 F.3d 824, 827 (8th Cir. 2006). Next, we conclude the
record does not support Wells’s claims of judicial impropriety, see Liteky v. United
States, 510 U.S. 540, 555 (1994) (judicial remarks that are critical or disapproving of,
or even hostile to parties or their cases, ordinarily do not support a bias or partiality
challenge); Bannister v. Delo, 100 F.3d 610, 614 (8th Cir. 1996) (presiding judge is
presumed impartial, and complaining party bears substantial burden of proving
otherwise), or of prosecutorial vindictiveness, see United States v. Williams, 793 F.3d
957, 963 (8th Cir. 2015) (defendant bears heavy burden to show vindictive
prosecution, which occurs when prosecutor seeks to punish defendant solely for
exercising valid legal right). We also conclude that Wells’s challenge to the
voluntariness of his plea is not cognizable on appeal because he did not present it to
the district court. See United States v. Foy, 617 F.3d 1029, 1033-34 (8th Cir. 2010)
(involuntary-plea claim is not cognizable on appeal when defendant did not move to
withdraw plea in district court).
To the extent counsel challenges the denial of an acceptance-of-responsibility
reduction, we conclude the district court did not clearly err because it considered
various factors when overruling Wells’s objection. See United States v. Woods, 596
1
The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri.
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F.3d 445, 448 (8th Cir. 2010) (district court did not clearly err in denying
acceptance-of-responsibility reduction when defendant waited until first day of trial
to enter Alford plea). We further conclude Wells’s prison sentence was not
substantively unreasonable, as the district court considered the statutory sentencing
factors and did not overlook a relevant factor, give significant weight to an improper
or irrelevant factor, or commit a clear error of judgment in weighing relevant factors.
See 18 U.S.C. § 3553(a); Gall v. United States, 552 U.S. 38, 41, 51 (2007)
(deferential abuse-of-discretion review of substantive reasonableness of sentence);
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (discussing
the standard of review); United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009)
(when district court varies below Guidelines range, “it is nearly inconceivable that the
court abused its discretion in not varying downward still further”).
Finally, we have independently reviewed the record under Penson v. Ohio, 488
U.S. 75 (1988), and have found no non-frivolous issues for appeal. Accordingly, we
affirm the judgment, and we grant counsel’s motion to withdraw.
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