United States of America v. Gene Lemay Barris

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-1691
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Gene Lemay Barris
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
____________
Submitted: March 13, 2018
Filed: March 21, 2018
[Unpublished]
____________
Before GRUENDER, BOWMAN, and ERICKSON, Circuit Judges.
____________
PER CURIAM.
Gene Barris pleaded guilty to drug and firearm charges pursuant to a plea
agreement that contained an appeal waiver. He was subsequently granted relief under
28 U.S.C. § 2255 and resentenced. He now directly appeals the new sentence

-- 1 of 2 --

imposed by the district court. His counsel has moved to withdraw and has filed a1
brief under Anders v. California, 386 U.S. 738 (1967), arguing that the court
committed substantive and procedural sentencing errors. Barris has filed a
supplemental brief asserting ineffective assistance of counsel claims.
We decline to consider Barris’s ineffective-assistance claims. See United
States v. Hernandez, 281 F.3d 746, 749 (8th Cir. 2002) (noting that, in general, an
ineffective-assistance claim is not cognizable on direct appeal and that such a claim
is properly raised in a § 2255 action). As to the remaining issues, we enforce the
appeal waiver. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (stating
that this court reviews de novo the validity and applicability of an appeal waiver);
United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (stating that
an appeal waiver will be enforced if the appeal falls within the scope of the waiver,
defendant knowingly and voluntarily entered into the plea agreement and the waiver,
and enforcing the waiver would not result in a miscarriage of justice).
Having independently reviewed the record pursuant to Penson v. Ohio, 488
U.S. 75 (1988), we find no nonfrivolous issues outside the scope of the appeal
waiver. Accordingly, we dismiss this appeal, and we grant counsel leave to
withdraw.
______________________________
The Honorable John A. Ross, United States District Judge for the Eastern1
District of Missouri.
-2-

-- 2 of 2 --