                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-1893
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                    Julian Rivera

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Western District of Arkansas - Fayetteville
                                 ____________

                           Submitted: January 19, 2017
                            Filed: January 23, 2017
                                 [Unpublished]
                                 ____________

Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
                         ____________

PER CURIAM.

      Julian Gambou Rivera pled guilty to sexually exploiting a minor and
possessing child pornography. He appeals the district court’s1 sentence, arguing it

      1
      The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
was substantively unreasonable. Having jurisdiction under 28 U.S.C. § 1291, this
court affirms.

       Rivera’s counsel has filed a brief under Anders v. California, 386 U.S. 738
(1967), and has moved to withdraw. In his supplemental brief, Rivera argues that his
plea agreement was unfair because the conduct underlying a dismissed charge was
used against him at sentencing; the court erred by improperly applying U.S.S.G. §
4B1.5(b)(1) and by failing to consider relevant mitigating factors; the prosecutor
defamed him by stating at sentencing that he would not change and had a high
likelihood of recidivism; and defense counsel was ineffective for failing to object to
the section 4B1.5 increase.

       This court finds that Rivera’s argument that his plea agreement was not
knowingly or voluntarily entered is not cognizable on direct appeal. See United
States v. Foy, 617 F.3d 1029, 1033-34 (8th Cir. 2010) (to extent defendant presented
argument to establish his plea was unknowing or involuntary, such claim would not
be cognizable on direct appeal where he failed to move in district court to withdraw
his guilty plea). The district court did not err in applying the 5-level increase. See
U.S.S.G. §§ 1B1.1, comment. (n.4B) (Guidelines Chapters Two, Three, and Four are
to be applied cumulatively and, in some cases, may be triggered by same conduct),
4B1.5(b)(1) (offense level shall be 5 plus offense level determined under Chapters
Two and Three); United States v. Pappas, 715 F.3d 225, 229 (8th Cir. 2013)
(double-counting is prohibited only if Guidelines at issue specifically forbid it);
United States v. Olson, 646 F.3d 569, 572 (8th Cir. 2011) (district court’s
construction and application of Guidelines are reviewed de novo). Rivera’s
ineffective-assistance claim fails, as counsel objected to the section 4B1.5 increase
at sentencing. See Weaver v. United States, 793 F.3d 857, 860 (8th Cir. 2015) (to
succeed on ineffective-assistance claim, movant must show counsel performed
deficiently and deficient performance prejudiced defense); United States v. Cook, 356



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F.3d 913, 919-20 (8th Cir. 2004) (ineffective-assistance claim may be addressed on
direct appeal where record is fully developed).

        This court also finds that the sentence was not substantively unreasonable, as
the court imposed the within-Guidelines sentence after considering the 18 U.S.C.
§ 3553(a) factors. See United States v. Callaway, 762 F.3d 754, 760 (8th Cir. 2014)
(on appeal, within-Guidelines-range sentence may be presumed reasonable); United
States v. Miller, 57 F.3d 910, 917 (8th Cir. 2009) (under substantive-reasonableness
test, district court abuses its discretion if it fails to consider relevant § 3553(a) factor,
gives significant weight to improper or irrelevant factor, or commits clear error of
judgment in weighing factors). As to Rivera’s assertion that the government defamed
him, the government’s argument properly related to the sentencing factors, and a
criminal appeal is not the proper vehicle to raise a defamation claim. An independent
review of the record reveals no non-frivolous issues for appeal. See Penson v. Ohio,
488 U.S. 75 (1988).

       The judgment is affirmed and counsel’s motion to withdraw is granted.
                      ______________________________




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