United States of America v. Kaiven Lemar Wesley

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-3020
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Kaiven Lemar Wesley
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Western District of Arkansas - Hot Springs
____________
Submitted: May 2, 2024
Filed: May 24, 2024
[Unpublished]
____________
Before LOKEN, SMITH, and KELLY, Circuit Judges.
____________
PER CURIAM.
Kaiven Wesley appeals the sentence imposed by the district court1 after he
pleaded guilty to a drug offense pursuant to a plea agreement containing an appeal
1The Honorable Susan O. Hickey, Chief Judge, United States District Court for
the Western District of Arkansas.

-- 1 of 2 --

waiver. His counsel has moved to withdraw, and has filed a brief under Anders v.
California, 386 U.S. 738 (1967), discussing whether the district court erred in its
drug-quantity calculation and in denying a downward variance, but acknowledging
the appeal waiver. In a pro se brief, Wesley argues that the plea agreement was
invalid, he was erroneously classified as a career offender, and the government
misrepresented the drug quantity and his criminal history. He also asserts that he
received ineffective assistance of counsel. Wesley has moved to appoint new counsel
and to add exhibits to his pro se brief.
We decline to consider Wesley’s claim of ineffective assistance of counsel in
this direct appeal. See United States v. Hernandez, 281 F.3d 746, 749 (8th Cir. 2002)
(in general, ineffective-assistance claim is not cognizable on direct appeal; such claim
is properly raised in 28 U.S.C. § 2255 action). Upon careful review, we conclude that
the appeal waiver is valid, enforceable, and applicable to the remaining issues raised
in this appeal. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (de novo
review of validity and applicability of appeal waiver); 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 plea
agreement and waiver, and enforcing waiver would not result in miscarriage of
justice).
We have independently reviewed the record under Penson v. Ohio, 488 U.S.
75 (1988), and have found no non-frivolous issues for appeal falling outside the scope
of the appeal waiver. Accordingly, we dismiss the appeal based on the appeal waiver,
grant counsel’s motion to withdraw, and deny as moot Wesley’s pending motions.
______________________________
-2-

-- 2 of 2 --