United States v. Jeffrey Dueker, No. 08-2030 (8th Cir. 2009)
Annotate this CaseCourt Description: Criminal case - Sentencing. Anders case. Challenge to sentence falls within the scope of defendant's knowing and voluntary appeal waiver, and the appeal must be dismissed.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 08-2030/2039 ___________ United States of America, Appellee, v. Jeffrey Dewain Dueker, Appellant. * * * Appeals from the United States * District Court for the * Western District of Missouri. * * [UNPUBLISHED] * * ___________ Submitted: December 16, 2009 Filed: December 21, 2009 ___________ Before BYE, BOWMAN, and BENTON, Circuit Judges. ___________ PER CURIAM. Jeffrey Dueker appeals his sentence of 252 months in prison and ten years of supervised release imposed by the district court1 after he pleaded guilty to two counts of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count of being a felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). His counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967), challenging the sentence as unreasonable. This challenge, however, falls within the scope of the appeal waiver contained in Dueker s plea agreement. Because 1 The Honorable Howard F. Sachs, United States District Judge for the Western District of Missouri. the record shows that Dueker knowingly and voluntarily entered into the waiver and the plea agreement, and because we see nothing to suggest that enforcement of the waiver would result in a miscarriage of justice, we will enforce the appeal waiver in these consolidated appeals. See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (court will enforce appeal waiver in plea agreement when appeal falls within scope of waiver, both waiver and plea agreement were entered into knowingly and voluntarily, and enforcing waiver would not result in miscarriage of justice). Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80 (1988), we have found no nonfrivolous issues that are not encompassed by the appeal waiver. Accordingly, we grant counsel s motion to withdraw, and we dismiss the appeals. ______________________________ -2-
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