Background
Cherelle Smith appealed after pleading guilty to aiding and assisting in the preparation of a false tax return. Her counsel moved to withdraw and filed an Anders brief challenging the sentence and restitution. The government moved to dismiss based on the appeal waiver, while Smith filed a pro se brief challenging the Guidelines calculation, restitution, and alleging prosecutorial misconduct and ineffective assistance of counsel.
The court’s reasoning
The court concluded the appeal waiver is valid, enforceable, and applicable because the appeal falls within its scope, Smith knowingly and voluntarily entered the plea agreement, and enforcing the waiver would not result in a miscarriage of justice. The court found Smith failed to identify government misconduct and declined to consider ineffective assistance claims on direct appeal. Upon independent review pursuant to Penson v. Ohio, the court found no non-frivolous issues for appeal outside the scope of the waiver.
What it means going forward
The appeal was dismissed in part based on the waiver, the remainder was affirmed, and counsel was granted leave to withdraw.
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