United States of America v. Nathan Allen Stewart

United States Court of Appeals
For the Eighth Circuit
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No. 18-3003
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Nathan Allen Stewart
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: May 29, 2019
Filed: June 5, 2019
[Unpublished]
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Before BENTON, STRAS, and KOBES, Circuit Judges.
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PER CURIAM.
Nathan Stewart pleaded guilty to possession with intent to distribute
marijuana, 21 U.S.C. § 841(a)(1), (b)(1)(D); carrying a firearm in relation to a drug-
trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i); and being a felon in possession of a
firearm, id. § 922(g)(1). As part of the plea agreement, he waived his right to appeal

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his convictions, but not the 97-month prison sentence imposed by the district court.1
In an Anders brief, Stewart’s counsel seeks permission to withdraw and questions
whether Stewart’s less-than-ten-year sentence for drug possession can support a
conviction for carrying a firearm during a drug-trafficking crime. See Anders v.
California, 386 U.S. 738 (1967). In a pro se brief, Stewart argues that he received
ineffective assistance of trial counsel.
We review the validity and applicability of an appeal waiver de novo. See
United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010). Upon careful review, we
conclude that the appeal waiver is enforceable and that it is applicable to the issue
counsel has raised in the Anders brief. See United States v. Andis, 333 F.3d 886,
889–92 (8th Cir. 2003) (en banc) (explaining that an appeal waiver will be enforced
if the appeal falls within the scope of the waiver, the defendant knowingly and
voluntarily entered into the plea agreement and the waiver, and enforcing the waiver
would not result in a miscarriage of justice). We also decline to address the
ineffective-assistance-of-counsel claim on direct appeal. See United States v.
Ramirez-Hernandez, 449 F.3d 824, 826–27 (8th Cir. 2006) (explaining that
ineffective-assistance claims generally are not considered on direct appeal, unless
the record has been fully developed, the failure to act would amount to a miscarriage
of justice, or counsel’s error is readily apparent).
Finally, we have independently reviewed the record under Penson v. Ohio,
488 U.S. 75 (1988), and conclude that there are no other non-frivolous issues for
appeal. Accordingly, we dismiss the appeal and grant counsel permission to
withdraw.
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1 The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.

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