United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-3032

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United States of America,

Appellee,

v.

James Ray Starling,

Appellant.

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Appeal from the United States

District Court for the 

Western District of Missouri.

[UNPUBLISHED]

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 Submitted: April 14, 2009 

 Filed: April 27, 2009 

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Before WOLLMAN, MELLOY and GRUENDER, Circuit Judges. 

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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:
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The Honorable James C. England, Chief Magistrate Judge, United States

District Court for the Western District of Missouri.

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The Honorable Ortrie D. Smith, United States District Judge for the Western

District of Missouri.

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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 twolevel 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
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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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