United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3253
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Craig Arthur Schmacker, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 2, 2010
Filed: June 7, 2010
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Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Pursuant to a written plea agreement containing a waiver of his right to appeal,
Craig Schmacker pleaded guilty to unlawfully distributing child pornography, in
violation of 18 U.S.C. § 2252(a)(2) and (b)(1). The district court1 sentenced
Schmacker to 188 months in prison and 10 years of supervised release. On appeal,
his counsel has moved to withdraw and has filed a brief under Anders v. California,
386 U.S. 738 (1967), challenging the sentence on various grounds, and arguing that
the appeal waiver should be set aside because the government violated the plea
1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
agreement by agreeing with the presentence report that Schmacker should receive an
enhancement under U.S.S.G. § 2G2.2(b)(3)(E).
In the plea agreement, Schmacker waived his right to appeal all issues related
to his plea agreement, his conviction, and his sentence, as long as the sentence was
within the maximum statutory penalties. The maximum prison term for Schmacker’s
offense is 240 months. See 18 U.S.C. § 2252(b)(1). We will enforce the appeal
waiver in this case, because the appeal falls within the scope of the waiver, the record
shows the requisite knowledge and voluntariness, and enforcing the appeal waiver
would not constitute a miscarriage of justice. See United States v. Andis, 333 F.3d
886, 889-92 (8th Cir. 2003) (en banc) (enforceability of appeal waiver); United States
v. Sisco, 576 F.3d 791, 796 (8th Cir. 2009) (considerations for knowing and voluntary
waiver); see also United States v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir.
2000) (per curiam) (enforcing appeal waiver in Anders case). We reject Schmacker’s
argument that the government breached the plea agreement: the agreement explicitly
indicated that the parties had not agreed on the enhancement’s applicability, and that
the government could make whatever argument it deemed appropriate at sentencing.
See United States v. Sanchez, 508 F.3d 456, 460 (8th Cir. 2007) (plea agreements are
contractual in nature and should be interpreted according to general contract
principles).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we have found no nonfrivolous issues that are not covered by the appeal
waiver. Accordingly, we grant counsel’s motion to withdraw, and we dismiss this
appeal.
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