United States of America v. Dionysus Azeria Hale

United States Court of Appeals
For the Eighth Circuit
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No. 20-1456
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Dionysus Azeria Hale
lllllllllllllllllllllDefendant - Appellant
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No. 20-1457
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Dionysus Azeria Hale
lllllllllllllllllllllDefendant - Appellant
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Appeals from United States District Court
for the Western District of Missouri - Springfield
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Submitted: August 19, 2020
Filed: August 24, 2020
[Unpublished]
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Before ERICKSON, STRAS, and KOBES, Circuit Judges.
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PER CURIAM.
After Dionysus Hale was found with a firearm, the district court1 revoked
supervised release and, following a guilty plea, convicted him of being a felon in
possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2). He received a within-
Guidelines-range sentence of 24 months in prison for violating the conditions of
supervised release and a concurrent, within-Guidelines-range sentence of 120
months for the felon-in-possession charge. One brief, filed by Hale’s counsel,
challenges these sentences. The other, a pro se supplemental brief, argues that trial
counsel was ineffective.
As part of his plea agreement, Hale agreed to waive the right to appeal his
120-month felon-in-possession sentence except for, as relevant here, ineffective
assistance of counsel. Reviewing the validity and applicability of the waiver de
novo, United States v. Azure, 571 F.3d 769, 772 (8th Cir. 2009), we conclude that it
is enforceable and that his challenges fall within it. See United States v. Andis, 333
F.3d 886, 889–92 (8th Cir. 2003) (en banc) (explaining that an appeal waiver will
be enforced if the appeal falls within the scope of the waiver, the defendant
1 The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.

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knowingly and voluntarily entered into the plea agreement and the waiver, and
enforcing the waiver would not result in a miscarriage of justice).
We also conclude that the 24-month revocation sentence, which is not covered
by the appeal waiver, is substantively reasonable. See United States v. Miller, 557
F.3d 910, 917 (8th Cir. 2009) (reviewing the reasonableness of a revocation sentence
for an abuse of discretion). The record establishes that the district court sufficiently
considered the statutory sentencing factors, 18 U.S.C. §§ 3553(a), 3583(e)(3), and
did not rely on an improper factor or commit a clear error of judgment. See United
States v. Larison, 432 F.3d 921, 923–24 (8th Cir. 2006).
Two loose ends remain. The first is that we will not consider the ineffective-
assistance-of-counsel claims here. See United States v. Ramirez-Hernandez, 449
F.3d 824, 826–27 (8th Cir. 2006) (explaining that ineffective-assistance-of-counsel
claims “are usually best litigated in collateral proceedings”). The second is that, for
the appeal in the felon-in-possession case, we have independently reviewed the
record and discovered no non-frivolous issues for appeal that are outside the scope
of the appeal waiver. See Penson v. Ohio, 488 U.S. 75 (1988). Accordingly, we
affirm the sentence in No. 20-1456, dismiss the appeal in No. 20-1457, and grant
counsel permission to withdraw.
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