United States v. Jeremy Nebeker


PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Morris S. Arnold and Lavenski R. Smith (UNPUBLISHED); Granting [3925174-2] motion to withdraw as counsel subject to counsel informing appellant about procedures for seeking rehearing or filing a petition for certorari. [3980328] [12-2279]

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 12-2279 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Jeremy Edward Nebeker lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Western District of Missouri - Springfield ____________ Submitted: November 27, 2012 Filed: December 3, 2012 [Unpublished] ____________ Before MURPHY, ARNOLD, and SMITH, Circuit Judges. ____________ PER CURIAM. Jeremy Edward Nebeker directly appeals after he pled guilty to attempting to receive child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1), and the Appellate Case: 12-2279 Page: 1 Date Filed: 12/03/2012 Entry ID: 3980328 district court1 sentenced him to 135 months in prison and a lifetime of supervised release. Nebeker’s counsel has moved to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the sentence is unreasonable. Nebeker pled guilty pursuant to a written plea agreement. The plea agreement contained an appeal waiver that included within its scope challenges to the sentence based on unreasonableness. We conclude that the appeal waiver is enforceable. See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (appeal waiver is generally enforceable if appeal falls within scope of waiver, both waiver and plea agreement were entered into knowingly and voluntarily, and enforcement of waiver would not result in miscarriage of justice). In addition, we have reviewed the record independently pursuant to Penson v. Ohio, 488 U.S. 75 (1988), and we have found no nonfrivolous issue for appeal. Accordingly, we dismiss the appeal based on the appeal waiver, and we grant counsel’s motion to withdraw, subject to counsel informing appellant about procedures for seeking rehearing or filing a petition for certiorari. ______________________________ 1 The Honorable Richard E. Dorr, United States District Judge for the Western District of Missouri. -2- Appellate Case: 12-2279 Page: 2 Date Filed: 12/03/2012 Entry ID: 3980328

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