United States v. Cline
| Decision Date | 03 March 2022 |
| Docket Number | No. 21-2933,21-2933 |
| Citation | 27 F.4th 613 |
| Parties | UNITED STATES of America, Plaintiff - Appellee, v. Dana Paul CLINE, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Daniel E. Hunt, Bandré Hunt & Snider, LLC, Jefferson City, MO, for defendant-appellant.
Ashley L. Turner, Asst. U.S. Atty., Jefferson City, MO, for plaintiff-appellee.
Before COLLOTON, BENTON, and STRAS, Circuit Judges.
Dana Cline appeals a judgment entered by the district court1 after he pleaded guilty to knowing receipt of child pornography. See 18 U.S.C. § 2252(a)(2). Cline entered his plea pursuant to a plea agreement with the government that includes an appeal waiver. His court-appointed counsel has moved to withdraw on the ground that the appeal presents no non-frivolous issue. See Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
Counsel's brief identifies two issues on appeal. The first issue is whether the district court erred by denying Cline's motion to withdraw his guilty plea. Counsel explains that Cline moved to withdraw his plea on the ground that he was not given adequate time to read and understand the plea agreement, and that his plea was therefore not knowing and voluntary. The brief relates that Cline's motion to withdraw also alleged that he had been taking medications with side effects that interfered with his ability to make a knowing and intelligent plea.
At a hearing on the motion to withdraw, however, Cline's testimony was inconsistent with his statements under oath at the plea hearing. Counsel accurately reports that before Cline pleaded guilty, he testified that he was not under the influence of any drug, medication, or alcoholic beverage that may affect his ability to understand what was happening. At the plea hearing, Cline also stated that he understood what was happening; that he read the plea agreement and understood its terms before he signed it; that he was aware that the agreement included an appeal waiver; and that he waived his appeal rights by entering the plea.
Counsel recounts that the district court found credible Cline's testimony at the plea hearing that he was not under the influence of medications, and that he understood the proceedings and the plea agreement. Counsel acknowledges that nothing in the record of the plea hearing suggests that Cline did not understand the plea agreement or that he did not knowingly and voluntarily enter into the agreement. Counsel concludes that given the district court's finding about Cline's credibility, and this court's precedents in United States v. Taylor , 515 F.3d 845, 851 (8th Cir. 2008), and United States v. Prior , 107 F.3d 654, 657-58 (8th Cir. 1997), it would be frivolous to argue on appeal that the district court erred in finding that the plea was knowing and voluntary and in denying the motion to withdraw the plea.
As a second issue, counsel raises whether this court could review Cline's sentence, given that the court imposed a prison term within the advisory guideline range, and that Cline signed a plea agreement that includes a waiver of his right to appeal the sentence. Counsel's brief sets forth the language of Cline's appeal waiver and the law regarding enforcement of such waivers established in United States v. Andis , 333 F.3d 886 (8th Cir. 2003) (en banc). Counsel recounts the colloquy at Cline's guilty plea hearing, where the court twice discussed the appeal waiver with Cline, both on the court's initiative and later at the request of the prosecutor. Counsel's brief recognizes that Andis provides for non-enforcement of an appeal waiver if it would constitute a "miscarriage of justice," such as where the court imposed a sentence in excess of the statutory maximum, the government violated a plea agreement, or the court selected a sentence based on an impermissible factor such as race or religion. Counsel concludes, however, that there is no non-frivolous basis on which to challenge the appeal waiver in this case, because Cline knowingly agreed to the waiver, the court sentenced Cline within the guideline range that he proposed in his sentencing memorandum, and there is no evidence that the court considered an impermissible factor.
Regarding the sentence imposed, counsel's brief explains that the court sustained Cline's only objection to the sentencing guideline range recommended by the probation office, adopted the range urged by Cline in his sentencing memorandum, and sentenced Cline to 156 months’ imprisonment—a term near the low end of the advisory range of 151 to 188 months. Counsel acknowledges this court's decisions holding that a sentence within the guideline range is "presumptively reasonable," United States v. Canania , 532 F.3d 764, 773 (8th Cir. 2008), and stating that it will be "the unusual case" where we reverse a sentence as substantively unreasonable. United States v. Feemster , 572 F.3d 455, 464 (8th Cir. 2009) (en banc). Given the record in this case, counsel concludes that it "would be a frivolous argument to contend that the sentence was calculated and imposed as the result of an incorrect application of the law."
Having independently reviewed the record under Penson v. Ohio , 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we conclude that there is no non-frivolous issue for appeal. On the first issue explored by counsel, the district court clearly did not abuse its discretion in denying Cline's motion to withdraw his guilty plea. At his guilty plea hearing, Cline testified under oath that he had enough time to discuss his case with counsel, and that he was fully satisfied with counsel's representation. Cline testified that he was not "under the influence of any drug, medication, or alcoholic beverage of any kind." R. Doc. 99, at 4. Cline said that he had read the plea agreement, discussed it with counsel, and understood all the terms of the agreement. Cline affirmed his understanding that he was waiving several enumerated rights by pleading guilty. He twice acknowledged specifically that he was waiving his right to appeal. Id . at 5-6, 17.
At a hearing on the motion to withdraw, the district court considered Cline's statements in support of the motion, but also examined Cline's testimony under oath at the guilty plea hearing. The court observed that the judge taking the plea made "a very strong record" that ran in "many respects counter to the defendant's motion." R. Doc. 129, at 5. Cline's testimony at the plea hearing on several key points was "exactly opposite" of what he said in support of his motion to withdraw the plea.
Id . at 13. Cline told the court that he was "just on auto pilot" when he testified at the plea hearing that he understood the proceedings. Id . at 12. But the district court found Cline's "auto pilot claim to be not credible," after observing his appearance in court, his level of education, and his ability to speak articulately. Id . at 17, 21. The court ultimately found that the record did not support Cline's claim that his plea was not entered willingly and knowingly, and with effective assistance of counsel. The court thus denied the motion to withdraw the plea.
The district court's credibility finding is virtually unreviewable on appeal. United States v. Holly , 983 F.3d 361, 363-64 (8th Cir. 2020). Given the thorough record made at the plea hearing that Cline's plea was knowing and voluntary, and the district court's finding that Cline's contrary assertions at a later date were not credible, there is no arguable basis for reversal. The court plainly did not abuse its discretion in denying Cline's motion to withdraw the plea. See United States v. Cruz , 643 F.3d 639, 641-42 (8th Cir. 2011).
On the second issue raised by counsel, because Cline's plea was valid, any argument regarding his sentence is barred by the appeal waiver in his plea agreement. See United States v. Scott , 627 F.3d 702, 704-05 (8th Cir. 2010). There is no arguable basis for avoiding the appeal waiver. The provision states broadly that Cline waives his right to appeal his sentence on any ground except claims of (1) ineffective assistance of counsel, (2) prosecutorial misconduct, or (3) an illegal sentence. Cline knowingly agreed to the waiver. He testified that he discussed the plea agreement with counsel and understood its provisions. The court twice discussed the appeal waiver with Cline at the guilty plea hearing, and Cline acknowledged that he understood it. The record reveals no non-frivolous argument of prosecutorial misconduct or illegal sentence. The court sentenced Cline within the statutory range of punishment, and within the very guideline range that Cline requested, so there is no colorable claim that enforcement of the waiver would be a miscarriage of justice. Cline has not sought to raise a claim of ineffective assistance of counsel, and we ordinarily do not consider such claims on direct appeal in any event. United States v. McAdory , 501 F.3d 868, 872 (8th Cir. 2007). On review of the record, we have located no non-frivolous issue for appeal that falls outside the scope of the appeal waiver.
For these reasons, we will affirm the judgment, and we will also grant counsel's motion to withdraw. Because writings in recent unpublished decisions of this court have raised the possibility that leave to withdraw should be denied where counsel's brief declines to argue frivolous points and explains why an appeal is frivolous, we elaborate on our decision.
The Constitution, as construed in Douglas v. California , 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), guarantees the right of an indigent accused in a criminal case to have the assistance of counsel on appeal. This right, however, does not include an entitlement to have a court-appointed attorney advocate frivolous positions on appeal. Where counsel concludes that an appeal is frivolous, and the court agrees after an independent review of the record, the court may allow counsel...
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