United States of America v. Demitrius Alston

United States Court of Appeals
For the Eighth Circuit
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No. 24-2760
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United States of America
Plaintiff - Appellee
v.
Demitrius Alston
Defendant - Appellant
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No. 24-2761
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United States of America
Plaintiff - Appellee
v.
Demitrius Alston
Defendant - Appellant
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No. 24-2762
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United States of America
Plaintiff - Appellee

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v.
Demitrius Alston
Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: December 15, 2025
Filed: February 9, 2026
[Unpublished]
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Before GRUENDER, KELLY, and ERICKSON, Circuit Judges.
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PER CURIAM.
For his involvement in multiple bank robberies in Nebraska and other states,
Demitrius Alston pleaded guilty to conspiracy to commit interference with interstate
commerce by way of robbery, see 18 U.S.C. § 1951(a), attempted bank robbery, and
bank robbery, see 18 U.S.C. § 2113(a).1 Pursuant to Fed. R. Crim. P. 11(c)(1)(C),
his plea agreement for these offenses required a sentencing range of 188-260
months’ imprisonment, which was above the guidelines range of 151-188 months.
The district court2 accepted the agreement and sentenced Alston to 235 months’
imprisonment.
1 Alston was charged in three separate cases: two in the District of Nebraska
and one in the Eastern District of North Carolina. These cases were consolidated
under Fed. R. Crim. P. 20, and the parties agreed to a global plea agreement.
2 The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.

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On appeal, Alston argues for the first time that he received ineffective
assistance of counsel concerning his plea agreement. “Generally, ineffective
assistance of counsel claims are better left for post-conviction proceedings.” United
States v. Cook, 356 F.3d 913, 919 (8th Cir. 2004). Such claims are proper on direct
appeal only in “exceptional cases” where “the record has been fully developed,” to
“avoid a plain miscarriage of justice,” or “when trial counsel’s ineffectiveness is
readily apparent or obviously deficient.” Id. at 919-20. Alston concedes the record
is not fully developed and never argues that a plain miscarriage of justice would
occur if we refuse to take up his appeal. Instead, he argues his counsel’s
ineffectiveness is readily apparent because requesting or bargaining for a sentence
above the guidelines is so obviously prejudicial to a criminal defendant that it could
never be the product of objectively reasonable professional performance. See
Strickland v. Washington, 466 U.S. 668, 689 (1984).
We disagree. As part of the plea, the Government agreed that it would dismiss
a firearm charge stemming from one of the robberies and that the sentences for the
remaining charges would run concurrently to each other. Absent these stipulations,
the sum of consecutive sentences might have exceeded the range required by the
agreement. The Government argues that counsel provided objectively reasonable
professional assistance by bargaining to avoid this outcome. The Government’s
argument is at least plausible. On this undeveloped record, it is not readily apparent
that counsel’s performance in connection with the agreement constituted objectively
unreasonable performance as counsel. See Strickland, 466 U.S. at 689. Nor can we
determine if there is a reasonable probability Alston would have exercised his right
to trial absent his counsel’s ineffectiveness. See Watson v. United States, 682 F.3d
740, 745 (8th Cir. 2012) (requiring defendant to show a reasonable probability he
would have gone to trial to succeed on an ineffective assistance of counsel claim in
connection with a guilty plea).
Alston remains free to challenge his sentence through a 28 U.S.C. § 2255
motion, where an evidentiary hearing would permit him to develop the record. See
United States v. Quiver, 925 F.3d 377, 380 (2019) (holding that no plain miscarriage

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of justice would result from refusing to consider ineffective assistance of counsel
claim where claim could still be brought in a § 2255 motion).
For the foregoing reasons, we dismiss the appeal.
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