United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-4107
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the Western
Chris A. Naylor, also known as * District of Missouri
Alan Naylor, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 23, 2001
Filed: March 6, 2001
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Before RICHARD S. ARNOLD, BOWMAN, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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PER CURIAM.
Chris A. Naylor appeals the sentence of 107 months imprisonment and four years
supervised release imposed on him by the district court1 following his guilty plea to
conspiring to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B),
and 846. On appeal, counsel moved to withdraw pursuant to Anders v. California, 386
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The Honorable D. Brook Bartlett, late a United States District Judge for the
Western District of Missouri.
U.S. 738 (1967), filing a brief in which he raises two sentencing issues. Mr. Naylor
raises the same issues in a pro se supplemental brief.
As part of his plea agreement, Mr. Naylor waived the right to appeal his sentence
on any ground except for an upward departure, a sentence in excess of the statutory
maximum, or a sentence in violation of law apart from the Guidelines. We conclude
that this waiver was knowing and voluntary. Among other things, at the time of his
plea hearing, Mr. Naylor was 36 years old, had a ninth-grade education, and could read
and understand English; he was assisted by counsel at the relevant hearing; and he
expressly does not seek to withdraw his plea. See United States v. Michelsen, 141
F.3d 867, 871-72 (8th Cir.) (examining defendant’s personal characteristics and
circumstances surrounding plea agreement when assessing knowledge and
voluntariness of waiver), cert. denied, 525 U.S. 942 (1998).
Mr. Naylor contends that the government breached the plea agreement by
arguing for a four-level aggravating-role sentencing enhancement, an enhancement that
had been recommended in the presentence report and was ultimately assessed by the
district court. The plea agreement, however, preserved the government’s right to argue
“any position it deem[ed] appropriate regarding the sentencing calculations.” Based
on this and other plea agreement provisions, we cannot say that the government
breached the agreement or that Mr. Naylor’s sentence conflicts with it. See United
States v. Greger, 98 F.3d 1080, 1081 (8th Cir. 1996) (so long as sentence does not
conflict with negotiated agreement, knowing and voluntary waiver of right to appeal
sentence will be enforced).
Having reviewed the record independently pursuant to Penson v. Ohio, 488 U.S.
75 (1988), we have found no non-frivolous issues for appeal. Accordingly, because
Naylor’s sentence was not an upward departure, a sentence in excess of the statutory
maximum, or a sentence in violation of law apart from the Guidelines, we now
specifically enforce his promise not to appeal by dismissing this appeal. See United
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States v. Williams, 160 F.3d 450, 452 (8th Cir. 1998) (per curiam). We also grant
counsel’s motion to withdraw.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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