United States Court of Appeals
For the Eighth Circuit
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No. 14-1846
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Michael D. McBride
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Joplin
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Submitted: September 3, 2014
Filed: September 23, 2014
[Unpublished]
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Before BYE, SMITH, and KELLY, Circuit Judges.
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PER CURIAM.
Michael McBride directly appeals after he pled guilty to a child-pornography
charge under a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement
containing an appeal waiver, and the district court1 sentenced him in accordance with
the plea agreement to the statutory minimum term of imprisonment. His counsel has
filed a brief under Anders v. California, 386 U.S. 738 (1967), challenging McBride’s
sentence. In addition, counsel seeks leave to withdraw.
After careful de novo review, we enforce the appeal waiver. See United States
v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (court should enforce appeal
waiver and dismiss appeal where it falls within scope of waiver, plea agreement and
waiver were entered into knowingly and voluntarily, and no miscarriage of justice
would result); see also United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (de
novo review of validity and applicability of appeal waiver). First, we conclude that
counsel’s challenge to McBride’s statutory minimum sentence falls within the scope
of the appeal waiver. Second, based on McBride’s statements under oath at the plea
hearing, we are satisfied that he entered into both the plea agreement and the appeal
waiver knowingly and voluntarily. See Nguyen v. United States, 114 F.3d 699, 703
(8th Cir. 1997) (defendant’s statements made during plea hearing carry strong
presumption of verity). Third, we conclude that no miscarriage of justice would result
from enforcing the waiver. See Andis, 333 F.3d at 891-92 (miscarriage-of-justice
exception is narrow and generally applies only to claims of illegal sentences,
sentences based on constitutionally impermissible factors, and ineffective assistance
of counsel). Finally, having independently reviewed the record pursuant to Penson
v. Ohio, 488 U.S. 75 (1988), we find no nonfrivolous issues outside the scope of the
appeal waiver. Accordingly, this appeal is dismissed, and we grant counsel leave to
withdraw, subject to counsel informing appellant about procedures for seeking
rehearing or filing a petition for certiorari.
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1
The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.
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