United States v. Brian Tracy

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3435
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Brian Todd Tracy, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 6, 2010
Filed: May 11, 2010
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Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Brian Tracy was charged with possessing child pornography, in violation of 18
U.S.C. § 2252(a)(4)(B) and (b)(2). Tracy pleaded guilty in accord with a written plea
agreement, which contained an appeal waiver. The district court1 sentenced Tracy to
84 months in prison, below the advisory Guidelines range. On appeal, counsel has
moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967),
challenging the reasonableness of the sentence and the adequacy of the plea-hearing
colloquy.
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The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
We will enforce the appeal waiver in this case because Tracy’s appeal falls
within the scope of the waiver, the record shows the requisite knowledge and
voluntariness, and enforcing the appeal waiver would not constitute a miscarriage of
justice. See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc)
(court should enforce appeal waiver and dismiss appeal where appeal falls within
scope of waiver, both plea agreement and waiver were entered into knowingly and
voluntarily, and no miscarriage of justice would result); see also United States v.
Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam) (enforcing appeal
waiver in Anders case).
Having independently reviewed the record under Penson v. Ohio, 488 U.S. 75,
80 (1988), we have found no nonfrivolous issue not covered by the waiver.
Accordingly, we grant counsel leave to withdraw, and we dismiss this appeal.
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