## United States Court of Appeals FOR THE EIGHTH CIRCUIT

________________ No. 08-3032

________________ United States of America, Appellee,

v. James Ray Starling, Appellant. * * * * * * * * * Appeal from the United States District Court for the Western District of Missouri. [UNPUBLISHED]

________________ 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 c onduct in violation of 18 U.S.C. § 2251(a). Starling’s plea ag reement contained the following provision:1 The Honorable James C. England, Ch ief Magistrate Judge, United States District Court for the Western District of Missouri.
2 The Honorable Ortrie D. Smith, United St ates District Judge for the Western District of Missouri. -2- 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 judge 1 ensured that Starling understood his right to appeal and that hewas 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 court 2accepted Starling’s plea of guilty. At sentencing, the district court revi ewed 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 victimwas 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 in crease under § 2G2.1(b)(5) (the victim was in the defendant’s “custody, care, or supe rvisory control”), a two-level increase under § 3A1.1(b)(1) (the victim was a “vulnerabl e victim”), and a three-level decrease under § 3E1.1(a)-(b) (the defendant clearly de monstrated acceptance of responsibility and assisted authorities in the prosecution of hi s 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-3- 360 months. Starling objected to the guideline enhancements under §§ 2G2.1(b)(2)(A), 2G2.1(b)(5) a nd 3A1.1(b)(1). The distri ct court overruled Starling’s objections, adopted the PSR’s advisory guide lines range, and sentenced Starling to 360 months’ imprisonment. Starling appeals his sentence, asserting thr ee 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 applie d 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 brie f 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 th e 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 e rrors alleged by Starling in th is appeal, we conclude the Government has established “(1) that the app eal is within the scope of the waiver, (2) that the defendant entered into the wa iver knowingly and voluntarily, and (3) that dismissing the appeal based on the defe ndant’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 alle ged by Starling constitute“sentencing error more serious than a misapplication of th e Sentencing Guidelines.” The proceedings before the magistrate judge show that Starling knowingly and voluntarily waived his right to appeal. Finally, Starling has notasserted, and we ha ve not independently-4- identified, any way in which enforcing th e waiver would result in a miscarriage of justice. Accordingly, we grant the Government’s motion to dismiss Starling’s appeal.

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