United States v. Tracy Jon White

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3866
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Tracy Jon White, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 12, 2002
Filed: September 30, 2002
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Before McMILLIAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
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PER CURIAM.
Tracy Jon White appeals his conviction and the sentence imposed by the
district court1 upon his guilty plea to knowingly possessing in and affecting interstate
commerce a firearm and ammunition, which had been transported in interstate
commerce, after he had been served with and made subject to a court order restraining
him from harassing, stalking, and threatening an intimate partner, all in violation of
18 U.S.C. §§ 922(g)(8) and 924(a)(2). Mr. White’s counsel has moved to withdraw
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
and filed a brief under Anders v. California, 386 U.S. 738 (1967); Mr. White has filed
a pro se supplemental brief; and the parties have submitted additional briefs as
directed.
Having thoroughly reviewed the record, we conclude that, in accordance with
the appeal waiver in his plea agreement, Mr. White knowingly and voluntarily waived
his right to appeal his conviction and sentence (with exceptions not relevant here).
See United States v. Michelsen, 141 F.3d 867, 871-72 (8th Cir.) (appeal waiver is
enforceable so long as it resulted from knowing and voluntary decision), cert. denied,
525 U.S. 942 (1998). Mr. White argues in part that the indictment was insufficient
because it failed to allege all elements of the offense. Even assuming that
jurisdictional challenges were not waived by the appeal waiver, we note that
insufficiency of the indictment is not a jurisdictional issue. See United States v.
Cotton, 122 S. Ct. 1781, 1785 (2002). Any ineffective-assistance claim that
Mr. White may not have waived is more properly presented in a proceeding under
28 U.S.C. § 2255. See United States v. Cain, 134 F.3d 1345, 1352 (8th Cir. 1998).
Accordingly, we enforce the appeal waiver, dismiss the appeal, and grant
counsel’s motion to withdraw.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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