United States of America v. Constantino Eredia

United States Court of Appeals
For the Eighth Circuit
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No. 13-3538
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Constantino Eredia,
lllllllllllllllllllll Defendant - 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 19, 2014
Filed: October 2, 2014 (Corrected October 3, 2014)
[Unpublished]
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Before COLLOTON, BOWMAN, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Constantino Eredia directly appeals after the district court revoked his1
supervised release and sentenced him above the Chapter 7 advisory Guidelines range
The Honorable Gary A. Fenner, United States District Judge for the Western1
District of Missouri.

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to the statutory maximum of 36 months in prison. His counsel has filed a brief,
arguing (1) that Eredia’s revocation sentence was unreasonable, and (2) that Eredia
received ineffective assistance of counsel in the revocation proceedings. His counsel
has also moved for leave to withdraw.
Upon careful review, we conclude that the district court neither erred
procedurally nor made a substantively unreasonable decision, and thus the court did
not impose an unreasonable revocation sentence. See United States v. Feemster, 572
F.3d 455, 461 (8th Cir. 2009) (en banc) (describing appellate review of sentencing
decisions); see also United States v. Young, 640 F.3d 846, 848 (8th Cir. 2011) (per
curiam) (same review standard applies for revocation sentence as for initial sentence).
Next, we decline to consider Eredia’s ineffective-assistance argument on direct
appeal, because ineffective-assistance claims ordinarily are deferred to 28 U.S.C.
§ 2255 proceedings. See United States v. McAdory, 501 F.3d 868, 872-72 (8th Cir.
2007).
As for counsel’s motion to withdraw, we conclude that allowing counsel to
withdraw at this time would not be consistent with the Eighth Circuit’s 1994
Amendment to Part V of the Plan to Implement The Criminal Justice Act of 1964.
We therefore deny counsel’s motion to withdraw as premature, without prejudice to
counsel refiling the motion upon fulfilling the duties set forth in the Amendment.
COLLOTON, Circuit Judge, concurring in part and dissenting in part.
I concur in the opinion affirming the judgment, but consistent with the
longtime practice of this court, I would grant counsel’s motion to withdraw, subject
to counsel informing Eredia about the procedures for filing a petition for writ of
certiorari pro se. E.g., United States v. Oberg, 530 F. App’x 604, 605 (8th Cir. 2013);
United States v. Lewis, 530 F. App’x 602, 603 (8th Cir. 2013); United States v. Stone,
529 F. App’x 800, 801 (8th Cir. 2013); United States v. Cortes, 424 F. App’x 607,
-2-

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608 (8th Cir. 2011). Part V of this court’s Plan to Implement the Criminal Justice Act
of 1964 contemplates that the court will grant counsel’s motion to withdraw before
counsel advises the defendant of the procedures for filing a petition for writ of
certiorari pro se: “If the motion to withdraw is granted, counsel shall promptly advise
the defendant of the procedures for filing a petition for writ of certiorari pro se,
following which counsel’s representation of the defendant shall terminate.” Plan to
Implement the Criminal Justice Act of 1964, Part V (Dec. 6, 1994) (emphasis added).
The Supreme Court in Anders v. California, 386 U.S. 738 (1967), directed that
counsel who believes an appeal is frivolous should file a motion to withdraw together
with a brief that refers to anything in the record that arguably might support an
appeal. Id. at 744. When the motion to withdraw is filed in a case governed by
Anders, the case is pending before the court of appeals, and there is still potential that
the court will deny the motion to withdraw and order adversarial briefing if the court
identifies a non-frivolous issue. Penson v. Ohio, 488 U.S. 75, 82-84 (1988). It would
be premature and confusing for counsel—at the time a brief and motion to withdraw
are filed in the court of appeals—to advise the appellant of the procedures for filing
a petition for writ of certiorari pro se at the Supreme Court. But if this court refuses
to grant counsel’s motion to withdraw after the court determines that the appeal is
frivolous, then counsel will be required to file two motions to withdraw in every
Anders case—one with the Anders brief and another after the court of appeals affirms
the judgment. I do not favor that approach and would instead follow this court’s
traditional practice of granting the motion to withdraw at the time of judgment,
subject to counsel thereafter providing advice to his client about pro se filings as
described in this circuit’s plan to implement the Criminal Justice Act.
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