United States v. Tracy Yost

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, Kermit E. Bye and Jane Kelly (UNPUBLISHED); [4314236-2] Granting motion to withdraw as counsel filed by Mr. Robert Kuchar. [4392524] [15-2681]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2681
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Tracy J. Yost
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: April 7, 2016
Filed: April 27, 2016
[Unpublished]
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Before LOKEN, BYE, and KELLY, Circuit Judges.
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PER CURIAM.
Tracy J. Yost pleaded guilty to receipt of child pornography, a violation of 18
U.S.C. § 2252(a)(2), in a written plea agreement that included an appeal waiver. The

Appellate Case: 15-2681

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Date Filed: 04/27/2016 Entry ID: 4392524

district court1 accepted the plea, granted a downward variance, and sentenced Yost
to 180 months in prison. He appeals the sentence. Defense counsel argues in a brief
filed under Anders v. California, 386 U.S. 738 (1967), that the court erred in applying
certain guidelines enhancements; Yost argues in a pro se supplemental brief that the
appeal waiver is unenforceable, and raises several other challenges to his sentence.
Upon careful review of the record, we will enforce the appeal waiver, which
applies to the issues raised in both the Anders brief and the supplemental brief. See
United States v. Andis, 333 F.3d 886, 890-92 (8th Cir. 2003) (en banc). The appeal
waiver is not contrary to a provision of the plea agreement describing how district
courts may reasonably vary from the calculated Guidelines range. The government
did not breach the plea agreement by failing to move for an acceptance-ofresponsibility reduction; Yost was awarded a three-level reduction for acceptance of
responsibility at sentencing. His contention that he did not knowingly and voluntarily
enter into the appeal waiver is belied by his plea-hearing testimony. See Blackledge
v. Allison, 431 U.S. 63, 74 (1977). Enforcing the waiver in this case will not result
in a miscarriage of justice. See Andis, 333 F.3d at 890-91.
Having independently reviewed the record pursuant to Penson v. Ohio, 488
U.S. 75 (1988), we find no nonfrivolous issues for appeal outside the scope of the
appeal waiver. We dismiss the appeal and grant counsel leave to withdraw. See
United States v. Mujica-Aranda, 806 F.3d 999 (8th Cir. 2015).
_________________________________

1

The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri.
-2-

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Date Filed: 04/27/2016 Entry ID: 4392524