United States Court of Appeals

For the Eighth Circuit

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No. 14-2672

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Kenneth O. Randolph

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: January 7, 2015

Filed: January 15, 2015

[Unpublished]

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Before WOLLMAN, BYE, and MELLOY, Circuit Judges.

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PER CURIAM.

Kenneth Randolph directly appeals after imposition of sentence by the district

court upon his guilty plea to being a felon in possession of a firearm. Counsel has

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The Honorable Gary A. Fenner, United States District Judge for the Western 1

District of Missouri.
moved to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738

(1967), arguing that the sentence imposed on Randolph, which represents a variance

above the calculated Guidelines range, is unreasonable. In a supplemental brief,

Randolph challengesthe voluntariness of his plea, argues that he received ineffective

assistance of counsel, and contends that the court failed to properly consider the 18

U.S.C. § 3553(a) factors in sentencing him. For the reasons discussed below, each

of these arguments is unavailing.

First, Randolph’s challenge to the voluntariness of his guilty plea is not

cognizable in this direct appeal, because he did not move to withdraw his plea below. 

See United States v. Umanzor, 617 F.3d 1053, 1060 (8th Cir. 2010) (defendant may

not challenge voluntariness of guilty plea for first time on direct appeal if he did not

move to withdraw plea in district court). Second, his ineffective-assistance claims are

more properly raised in proceedings under 28 U.S.C. § 2255, and we decline to

consider those claims in this appeal. See United States v. McAdory, 501 F.3d 868,

872-73 (8thCir. 2007) (ineffective-assistance claims are ordinarily deferred to § 2255

proceedings). 

Third, after careful review, see United States v. Feemster, 572 F.3d 455, 461

(8th Cir. 2009) (en banc) (appellate review of sentencing decision), we conclude that

the sentence is not unreasonable. The district court’s comments reflect an

individualized assessment of multiple section 3553(a) factors; and in carefully

explaining its decision to vary upward, the court commented on, among other things,

Randolph’s recidivism, his poor history on supervised release following a prior

federal felon-in-possession sentence, and his substance-abuse issues, as well as the

need to protect the public and effectively deter future criminal conduct. See United

States v. Magnum, 625 F.3d 466, 469-70 (8th Cir. 2010) (where district court

sufficiently explains sentencing decision, appellate court must give due deference to

court’s decision that § 3553(a) factors justify extent of upward variance; upward

variance is reasonable where court makes individualized assessment of § 3553(a)

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factors); cf. United States v. David, 682 F.3d 1074, 1077-78 (8th Cir. 2012) (upward

variance may be warranted where defendant repeats criminal conduct shortly after

completing punishment for previous offense).

Finally, having independently reviewed the record in accordance with Penson

v. Ohio, 488 U.S. 75, 80 (1988), we find no nonfrivolous issues. Accordingly, we

grant counsel’s motion to withdraw. The judgment is affirmed.

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