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United States v. Tracy Yost, 15-2681 (2016)

Court: Court of Appeals for the Eighth Circuit Number: 15-2681 Visitors: 9
Filed: Apr. 27, 2016
Latest Update: Mar. 02, 2020
Summary: 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District Court for the Western District of Missouri - Kansas City _ Submitted: April 7, 2016 Filed: April 27, 2016 [Unpublished] _ Before LOKEN, BYE, and KELLY, Circuit Judges.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.
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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                                   [Unpublished]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
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-of-
responsibility 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-

Source:  CourtListener

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