United States v. Tracy Yost


PER CURIAM OPINION FILED - THE COURT: James B. Loken, Kermit E. Bye and Jane Kelly (UNPUBLISHED); [4314236-2] Granting motion to withdraw as counsel filed by Mr.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

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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 ____________ Appeal from United States District Court for the Western District of Missouri - Kansas City ____________ Submitted: April 7, 2016 Filed: April 27, 2016 [Unpublished] ____________ Before LOKEN, BYE, and KELLY, Circuit Judges. ____________ PER CURIAM. Tracy J. Yost pleaded guilty to receipt of child pornography, a violation of 18 U.S.C. ยง 2252(a)(2), in a written plea agreement that included an appeal waiver. The Appellate Case: 15-2681 Page: 1 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- Appellate Case: 15-2681 Page: 2 Date Filed: 04/27/2016 Entry ID: 4392524

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