United States of America v. Bulmaro Villegas-Rodriguez

United States Court of Appeals
For the Eighth Circuit
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No. 14-3852
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Bulmaro Villegas-Rodriguez
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: June 11, 2015
Filed: June 19, 2015
[Unpublished]
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Before SHEPHERD, BYE, and KELLY, Circuit Judges.
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PER CURIAM.
Bulmaro Villegas-Rodriguez directly appeals the within-Guidelines-range
sentence the district court imposed after he pled guilty to drug-related conspiracy1
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the1
Eastern District of Missouri.

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charges. His counsel has moved to withdraw, and has filed a brief citing Anders v.
California, 386 U.S. 738 (1967), acknowledging an appeal waiver in Villegas’s plea
agreement, and otherwise challenging Villegas’s sentence. Villegas has filed a
supplemental brief asserting, in part, that his guilty plea was not knowing and
intelligent because trial counsel misadvised him about possible defenses and the
length of the sentence he would receive, and that the district court did not address the
sentencing implications of his illegal-immigrant status. He also challenges his
conviction and sentence on various grounds.
Upon careful review, we conclude that Villegas’s challenges to the
voluntariness of his guilty plea are unavailing, see United States v. Scott, 627 F.3d
702, 704 (8th Cir. 2010) (de novo review of validity and applicability of appeal
waiver); see also United States v. Thompson, 770 F.3d 689, 694 (8th Cir. 2014)
(addressing defendant’s arguments on appeal that his plea was involuntary, and
affirming; appeal waivers are not absolute and decision to be bound by provisions of
plea agreement must be knowing and voluntary), because the record does not
establish a reasonable probability that, but for his misunderstandings, he would not
have pleaded guilty. At the plea hearing, Villegas confirmed, under oath, that he
understood “everything” in the plea agreement, including the penalties he faced and
the appeal waiver, which the court specifically referenced and discussed. In addition,
the Presentence Report indicated that upon release from incarceration Villegas would
be deported. See Fed. R. Crim. P. 52(a) (error that does not affect substantial rights
must be disregarded); United States v. Todd, 521 F.3d 891, 896 (8th Cir. 2008) (Fed.
R. Crim. P. 11 error affects substantial rights only where defendant shows reasonable
probability that but for error he would not have pleaded guilty); see also Nguyen v.
United States, 114 F.3d 699, 703 (8th Cir. 1997) (defendant’s statements made during
plea hearing carry strong presumption of verity). Because the appeal waiver is valid,
we further conclude that counsel’s and Villegas’s challenges to the conviction and
sentence are barred, as they fall within the scope of the waiver. See United States v.
Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (appeal waiver will be
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enforced if appeal falls within scope of waiver, defendant knowingly and voluntarily
entered into waiver and plea agreement, and enforcing waiver would not result in
miscarriage of justice). To the extent Villegas has raised ineffective-assistance-of-
counsel claims that require development of matters outside the record, we do not
address them in this direct appeal. See United States v. McAdory, 501 F.3d 868, 872-
73 (8th Cir. 2007) (appellate court ordinarily defers ineffective-assistance claims to
28 U.S.C. § 2255 proceedings).
Finally, having independently reviewed the record pursuant to Penson v. Ohio,
488 U.S. 75 (1988), we find no nonfrivolous issues. Accordingly, we affirm the
district court’s judgment. 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.
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