## United States Court of Appeals **For the Eighth Circuit**

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No. 20

- 3606

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Alex Kellum

lllllllllllllllllllll Defendant - Appellant

____________ Appeal from United States District Court for the District of Nebraska - Omaha

____________
Submitted: July 2 7 , 2021 Filed: July 30, 2021 [Unpublished]

____________ Before SHEPHERD, GRASZ, and STRAS, Circuit Judges.

____________

PER CURIAM.

Following a bench trial, the district court 1 convicted Alex Kellum of three

counts of distributi on of a mixture or substance containing cocaine base. 21 U.S.C. § 841(a)(1), (b)(1). Kellum’s counsel requests permission to withdraw and, in an

1 The Honorable Laurie Smith Camp, United States District Judge for the Distric t of Nebraska, now deceased.-2- Anders brief, raises the insufficiency of the evidence as a potential argument on appeal

. See Anders v. California , 386 U.S. 738 (1967). Kellum has also filed two pro se br iefs in which he makes a number of other arguments

. We affirm.

We conclude that the government presented sufficient evidence of Kellum’s guilt

. See United States v. Ross , 990 F.3d 636, 639 (8th Cir. 2021) (reviewing the sufficiency of the evidence de novo). One witness testified that Kellum sold him drugs

, and other evidence

, including video and telephone recordings, corroborated
his testimony

. See United States v. Hernandez , 569 F.3d 893, 896

– 97 (8th Cir. 2009) (stating that the factfinder’s evaluation of “the credibility of criminal witnesses” is “virtually unreviewable on appeal” (quotation marks omitted)).

Kellum’s pro se arguments fare no better

. T he government did not file the superseding indictment too late or in retaliation for Kellum ’s “exercise [] [of] his right to proceed to trial .” 2 See 18 U.S.C. § 3282(a) (setting a five

- year statute of limitations); C ampbell , 410 F.3d at 462 (“ A presumption [of vindictive prosecution] does not arise just because action detrimental to the defendant was taken after the
exercise of the defendant ’ s legal right s[.]”)

. Nor did it fail to produce the relevant “statement[s]” of its witnesses

, 18 U.S.C. § 3500(b); see United States v. Green , 151 F.3d 1111, 1115 (8th Cir. 1998) (explaining the requirements of the Jencks Act), or other material evidence in the case

, see Brady v. Maryland , 373 U.S. 83 , 87 (1963)

.

We decline to consider Kellum’s remaining arguments. One of them is a
Confrontation Clause challenge to forensic lab reports, but Kellum had already stipulated that, “[b]ased on [] laboratory testing,” the substance he was convicted of distributing was cocaine base

. See United States v. Robinson , 617 F.3d 984, 989 (8th Cir. 2010) (“ A defendant may waive his confrontation rights

. . . by stipulating

2 The same goes for an information that provided details about a prior drug conviction

. See 21 U.S.C. § 851 (a)(1) (permitting the information to be filed “before trial, or before entry of a plea of guilty”) ; United States v. Campbell , 410 F.3d 456, 462 (8th Cir. 2005)

.-3- to the admission of evidence . . . .” (first alteration in original) (quotation marks omitted) ). Another is ineffective assistance of counsel , but it would be premature to
consider this claim now without an adequately developed record. See United States
v. Ramirez

- Hernandez , 449 F.3d 824, 826

– 27 (8th Cir. 2006) (explaining that this type of claim is “usually best litigated in collateral proceedings”).

Finally, w e have independently reviewed the record and conclude that no
other non

- frivolous issues exist. See Penson v. Ohio , 488 U.S. 75 , 82

– 83 (1988). We accordingly affirm the judgment of the district court and grant counsel permission to withdraw.

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