                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-2177
                                  ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
     v.                               * District Court of Minnesota.
                                      *
Andy Roger Baccam,                    *    [PUBLISHED]
                                      *
           Defendant - Appellant.     *
                                 ___________

                             Submitted: August 26, 2004
                                Filed: July 13, 2005
                                 ___________

Before MELLOY, LAY, and COLLOTON, Circuit Judges.
                           ___________

PER CURIAM

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




      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
       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 (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, 125 S. Ct. 738 (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 Baccam’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).



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       In a case similar to this one, United States v. Burns, 2005 WL 1366430, *2 (8th
Cir. Jun. 10, 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 Burns, we
held that the “extremely narrow” exception in Andis did not apply to cases where the
sentence was within the existing statutory range. Burns, 2005 WL 1366430 at *2.
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
pursuant to Booker. Burns, 2005 WL 1366430 at *2; see also United States v. Davis,
2005 WL 1342444, *1 (8th Cir. Jun. 8, 2005); United States v. Fogg, 2005 WL
1186535, *2 (8th Cir. May 20, 2005). “Unless expressly reserved . . . the right to
appellate relief under Booker is among the rights waived by a valid appeal waiver.”
Fogg, 2005 WL 1186535 at *2.

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

LAY, Circuit Judge, concurring.

       I concur in the judgment of the court. I write separately to highlight the limited
efficacy of an inflexible federal criminal justice policy that responds to the epidemic
of drug crimes without adequately addressing the root cause of this epidemic – drug
addiction. Many states have created specialized drug courts that approach this
epidemic with much greater success. In most drug courts, nonviolent, substance-
abusing offenders charged with drug-related crimes are channeled into judicially
supervised substance abuse treatment, mandatory drugs testing, and other
rehabilitative services in an effort to reduce recidivism. Eligible offenders typically
have the charges against them stayed and dropped if treatment is successful, or plead
guilty with prosecution deferred and criminal punishment withheld if treatment is
successful. Evidence shows that the flexible and pro-active approach of drug courts
reduces recidivism rates to less than half of the recidivism rate of those offenders who
are simply imprisoned for their drug crimes. Unfortunately, the federal criminal

                                          -3-
justice system offers no such alternatives for nonviolent, substance-abusing offenders.
Given the tremendous economic and human costs of imprisoning nonviolent drug
offenders, Congress should seriously consider creating federal drug courts. Federal
drug courts would save a significant amount of money for taxpayers.
                        ______________________________




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