SHEPHERD, Circuit Judge.
After being charged in a twelve-count indictment, Edward Boroughf pled guilty to one count of conspiracy to distribute in excess of 1,000 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1) and to two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Counts 5 and 11). Boroughf appeals his sentence, and we affirm.
Following his arrest and indictment in early 2009, Boroughf entered into a plea agreement, which contained an appeal waiver, and pled guilty to Counts 1, 5, and 11 of the indictment. Count 1 charged Boroughf with knowingly and unlawfully combining and conspiring with others to distribute in excess of 1,000 kilograms of marijuana.
At sentencing, the district court
Boroughf's attorney first purports to present two issues—that Boroughf's appeal waiver is unenforceable and that Boroughf's
We will enforce a defendant's appeal waiver against all issues that fall within the scope of the waiver if the defendant entered the plea agreement and appeal waiver "knowingly and voluntarily" and enforcement of the waiver would not cause a "miscarriage of justice." United States v. Scott, 627 F.3d 702, 704 (8th Cir.2010). First, Boroughf's claim that his sentence was substantively unreasonable falls within the scope of his appeal waiver, which prohibits an appeal regarding "all sentencing issues" except the calculation of Boroughf's criminal history category. Second, our review of the transcript from the change-of-plea hearing shows the plea agreement and appeal waiver were entered into knowingly and voluntarily. Finally, applying the appeal waiver to dismiss Boroughf's appeal of the substantive reasonableness of his sentence would not result in a miscarriage of justice. See United States v. Andis, 333 F.3d 886, 892 (8th Cir.2003) (en banc) (holding that the dismissal of "an allegation that the sentencing judge misapplied the Sentencing Guidelines or abused his or her discretion" does not, in the face of a valid appeal waiver, constitute a miscarriage of justice). Accordingly, we apply Boroughf's appeal waiver and dismiss his claim that his sentence is substantively unreasonable.
Boroughf next argues the district court erred when it increased his criminal history category because of his 1997 conviction. Boroughf contends that the conduct upon which the 1997 conviction was based was part of the conspiracy constituting Count 1 and should therefore be viewed as relevant conduct rather than considered in calculating his criminal history category. We review a district court's relevant-conduct determination for clear error, remembering that such a determination is fact-intensive and "well within the district court's sentencing expertise and greater familiarity with the factual record." United States v. Stone, 325 F.3d 1030, 1031 (8th Cir.2003) (quotation omitted).
Section 4A1.1 of the Sentencing Guidelines requires that a district court add three criminal history points for each of a defendant's prior sentences of imprisonment exceeding 13 months. United States Sentencing Commission, Guidelines Manual, § 4A1.1(a). A "prior sentence" is defined as "any sentence previously imposed for conduct not part of the instant offense." United States v. Ault, 598 F.3d 1039, 1041 (8th Cir.2010) (quoting U.S.S.G. § 4A1.2(a)(1)). Any conduct that is part of the instant offense is relevant conduct and "is considered in the calculation of the defendant's offense level, not the criminal history category." Id. Whether conduct resulting in the prior conviction was part of the instant offense depends on factors such as the charge in the indictment, the temporal and geographical proximity of the two acts, whether the two acts involved common victims or a common scheme, and whether the prior conviction is used to
The district court did not commit clear error. Boroughf's attempt to connect his 1997 conviction to the instant offense relies on the fact that both involved marijuana and that the 1997 conviction occurred within the time frame of the conspiracy. Additional facts, however, support the district court's conclusion that the 1997 conviction was a separate and distinct offense. For example, the instant offense involved a fifteen-year conspiracy that resulted in the distribution of between 3,000 and 10,000 kilograms of marijuana in and around the St. Louis area. Even at the beginning of the conspiracy, each shipment Boroughf received contained between 10 to 350 pounds of marijuana. These shipments were processed at sites controlled by the IMC and were sent out for distribution. In contrast, Boroughf's 1997 conviction involved the possession of a small bag containing approximately 35 grams of marijuana. Additionally, whereas the instant offense involves only the conspiracy to distribute marijuana, Boroughf's 1997 conviction involved two offenses: the possession of heroin and the possession of marijuana (for which he received two concurrent four-year terms). In light of these facts, the district court's decision to consider Boroughf's 1997 conviction as a separate and distinct offense was not clearly erroneous.
For the foregoing reasons, we affirm the sentence imposed by the district court.