Opinion
No. 80-1609.
Submitted January 26, 1981.
Decided January 30, 1981.
Bruce Aarestad, Fargo, N. D., for appellant Kenneth L. Ulland.
James R. Britton, U.S. Atty., Lynn E. Crooks, Asst. U.S. Atty., Fargo, N. D., for appellee.
Appeal from the United States District Court for the District of North Dakota.
Before HEANEY, ROSS and ARNOLD, Circuit Judges.
Defendant appeals from his conviction, on plea of guilty, of two counts of willful failure to file an income-tax return, in violation of 26 U.S.C. § 7203. He claims that his plea of guilty was based on a plea agreement under which the United States promised, inter alia, that it would recommend to the District Court that sentencing in this case be delayed until final disposition, including appeal, of another criminal prosecution against defendant, United States v. Kenneth L. Ulland, now pending in this Court as No. 80-1610. The Government says it made no such promise.
The Hon. Paul Benson, Chief Judge, United States District Court for the District of North Dakota.
We have concluded that the appeal must be dismissed under 8th Cir.R. 9(a). Whether a plea bargain was not kept, like the claim that a guilty plea was involuntary, is an issue not cognizable on direct appeal. See United States v. Mims, 440 F.2d 643 (8th Cir. 1971) (per curiam). The issue must first be presented to the District Court, by motion to withdraw the plea of guilty under Fed.R.Crim.P. 32(d), by motion to reduce or correct the sentence under Fed.R.Crim.P. 35, or by petition to set aside the conviction under 28 U.S.C. § 2255.
The appeal is dismissed.