                      United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 08-3032
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United States of America,                 *
                                          *
       Appellee,                          *
                                          *       Appeal from the United States
       v.                                 *       District Court for the
                                          *       Western District of Missouri.
James Ray Starling,                       *
                                          *       [UNPUBLISHED]
       Appellant.                         *


                                 ________________

                            Submitted: April 14, 2009
                                Filed: April 27, 2009
                                ________________

Before WOLLMAN, MELLOY and GRUENDER, Circuit Judges.
                      ________________

PER CURIAM.

       Pursuant to a plea agreement, James Ray Starling pled guilty to employing,
using, persuading, inducing, or coercing a minor female to engage in sexually explicit
conduct for the purpose of producing a visual depiction of such conduct in violation
of 18 U.S.C. § 2251(a). Starling’s plea agreement contained the following provision:
      15. Waiver of Appellate and Post-Conviction Rights.

             ....

             b. The defendant expressly waives his right to appeal his sentence,
      directly or collaterally, on any ground except a sentence imposed in
      excess of the statutory maximum or an illegal sentence, that is, sentencing
      error more serious than a misapplication of the Sentencing Guidelines, an
      abuse of discretion, or the imposition of an unreasonable sentence.

At Starling’s change of plea hearing, the magistrate judge1 ensured that Starling
understood his right to appeal and that he was knowingly and voluntarily waiving this
right as a part of the plea agreement. After reviewing the proceedings before the
magistrate judge de novo, the district court2 accepted Starling’s plea of guilty.

       At sentencing, the district court reviewed the recommended advisory sentencing
guidelines range calculation in Starling’s Presentence Investigation Report (“PSR”).
The PSR recommended a base offense level of 32 under § 2G2.1(a), a two-level
increase under § 2G2.1(b)(1)(B) (the victim was under sixteen years of age), a two-
level increase under § 2G2.1(b)(2)(A) (the offense involved “the commission of a
sexual act or sexual contact”), a two-level increase under § 2G2.1(b)(5) (the victim was
in the defendant’s “custody, care, or supervisory control”), a two-level increase under
§ 3A1.1(b)(1) (the victim was a “vulnerable victim”), and a three-level decrease under
§ 3E1.1(a)-(b) (the defendant clearly demonstrated acceptance of responsibility and
assisted authorities in the prosecution of his own misconduct). Starling’s total offense
level of 37, combined with his criminal history category of IV and the statutory
maximum sentence of 360 months, resulted in an advisory guidelines range of 292 to


       1
        The Honorable James C. England, Chief Magistrate Judge, United States
District Court for the Western District of Missouri.
       2
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.

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360 months.       Starling objected to the guideline enhancements under §§
2G2.1(b)(2)(A), 2G2.1(b)(5) and 3A1.1(b)(1). The district court overruled Starling’s
objections, adopted the PSR’s advisory guidelines range, and sentenced Starling to 360
months’ imprisonment.

        Starling appeals his sentence, asserting three procedural errors. First, he argues
that the district court’s application of § 2G2.1(b)(2)(A) amounts to unlawful double
counting because 18 U.S.C. § 2251(a) already includes “sexual contact” as an element.
Second, he argues that the district court should not have applied a two-level increase
under § 3A1.1(b)(1) because the victim was not vulnerable. Third, he argues that the
district court should not have applied a two-level increase under § 2G2.1(b)(5) because
the victim was not under his care, custody or control. After Starling filed his opening
brief, the Government filed a responsive brief addressing the merits of the three alleged
procedural errors and then filed a motion to dismiss Starling’s appeal because the
alleged errors fell within the scope of his plea agreement’s appeal waiver. Starling
responded to the motion to dismiss by asserting that his alleged errors constituted an
illegal sentence, thereby falling outside the scope of the waiver, and that his waiver
was not knowing and voluntary.

       After reviewing the proceedings before the magistrate judge and the district
court and the three sentencing errors alleged by Starling in this appeal, we conclude the
Government has established “(1) that the appeal is within the scope of the waiver, (2)
that the defendant entered into the waiver knowingly and voluntarily, and (3) that
dismissing the appeal based on the defendant’s waiver would not result in a
miscarriage of justice.” See United States v. Aronja-Inda, 422 F.3d 734, 737 (8th Cir.
2005). None of the procedural errors alleged by Starling constitute “sentencing error
more serious than a misapplication of the Sentencing Guidelines.” The proceedings
before the magistrate judge show that Starling knowingly and voluntarily waived his
right to appeal. Finally, Starling has not asserted, and we have not independently



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identified, any way in which enforcing the waiver would result in a miscarriage of
justice. Accordingly, we grant the Government’s motion to dismiss Starling’s appeal.
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