United States v. Andy Roger Baccam

414 F.3d 885, 2005 U.S. App. LEXIS 14064, 2005 WL 1630945

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 13, 2005
• Docket: 03-2177
• Status: Published

Opinions

PER CURIAM.

Andy Roger Baccam appeals his sentence of 248 months’ imprisonment imposed by the district court.¹ We affirm.

As part of a plea agreement, Baccam pled'guilty to two counts: (1) possession with intent to distribute methamphetamine; and (2) possession of a firearm during a drug trafficking crime. The plea agreement contained a waiver of Baccam’s appeal rights. Before sentencing, Baccam sought a downward departure due to an overstated criminal history. At the sentencing hearing, Baccam argued that a downward departure should apply because his status as a career offender overstated the extent and seriousness of his criminal history. The court denied the motion for a downward departure and issued a sentence of 188 months for the first count and 60 months.for the second count to be served consecutively.

Baccam filed a notice of appeal pro se and told his counsel that he intended to seek new representation. However, a motion for substitution of counsel was neither served nor filed. Subsequently, his counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), articulating Baccam’s claims for appeal. At our request, both parties prepared supplemental briefing on whether the district court’s finding that Baccam was a career offender was contrary to the United States Supreme Court’s holding in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Having carefully reviewed the briefs and the record, we find no non-frivolous issues that merit discussion, other than the question of whether the appeal waiver encompasses a Booker claim.

Pursuant to his plea agreement with the government, Baccam surrendered any right to appeal his sentence. There is nothing in the record to indicate that any potential claims by Baccam would fall outside of the scope of the appeal waiver. Further, the record indicates that Bac-cara's waiver was knowing and voluntary. As a result, the only reason for us to not enforce the appeal waiver would be if the sentence was “illegal” and that upholding it would represent a “miscarriage of justice” under United States v. Andis, 333 F.3d 886, 891 (8th Cir.2003) (en banc).

In a case similar to this one, United States v. Burns, 409 F.3d 994, 996 (8th Cir.2005), applying Andis, we held that the defendant’s appeal of a career offender finding subject to Booker did not override an appeal waiver. In Bums, we held that the “extremely narrow” exception in Andis did not apply to cases where the sentence was within the existing statutory range. Burns, 409 F.3d at 996. Since Baccam was sentenced according to then-existing binding rules regarding career offender status, his waiver of appeal is binding even if he has appealable issues pursu ant to Booker. Burns, 409 F.3d at 996; see also United States v. Davis, 133 Fed. Appx. 359, - (8th Cir.2005); United States v. Fogg, 409 F.3d 1022, 1025-26 (8th Cir.2005). “Unless expressly reserved ... the right to appellate relief under Booker is among the rights waived by a valid appeal waiver.” Fogg, 409 F.3d at 1025-26.

As a result, we affirm the judgment of the district court.

1 . The Honorable John R. Tunheim, United States District Judge for the District of Minnesota.