United States of America v. Michael Thomas Cummings, II, also known as Michael Cummings, also known as Michael…

United States Court of Appeals
For the Eighth Circuit
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No. 24-1126
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Michael Thomas Cummings, II, also known as Michael Cummings, also known as
Michael Cummings, II, also known as Blue
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 4, 2024
Filed: September 9, 2024
[Unpublished]
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Before GRUENDER, SHEPHERD, and ERICKSON, Circuit Judges.
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PER CURIAM.

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Michael Cummings appeals the sentence the district court1 imposed after he
pleaded guilty to drug and firearm offenses pursuant to a written plea agreement
containing an appeal waiver, with exceptions for prosecutorial misconduct and
ineffective assistance of counsel. His counsel has requested leave to withdraw and has
filed a brief under Anders v. California, 386 U.S. 738 (1967), challenging the
Guidelines calculations and the substantive reasonableness of the sentence. Cummings
has also filed a pro se brief, raising additional challenges to his sentence, as well as
claims of prosecutorial misconduct and ineffective assistance of counsel.
We conclude that the appeal waiver is valid, enforceable, and applicable to the
issues raised in this appeal. 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, 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 further conclude that Cummings failed to identify any conduct by the
government constituting misconduct, and we decline to consider his ineffective-
assistance claims on direct appeal. See United States v. Clayton, 787 F.3d 929, 933
(8th Cir. 2015) (explaining that prosecutorial misconduct requires a showing that the
government’s conduct was improper and affected the defendant’s substantial rights);
United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir. 2006)
(establishing that ineffective-assistance claims are usually best raised in collateral
proceedings where the record can be properly developed).
1The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
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Having independently reviewed the record pursuant to Penson v. Ohio, 488 U.S.
75 (1988), we find no non-frivolous issues for appeal outside the scope of the appeal
waiver. Accordingly, we dismiss this appeal and grant counsel leave to withdraw.
Cummings also requests new counsel on appeal, but we conclude new counsel is not
warranted.
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