SMITH, Circuit Judge.
Antonio Ramon Guzman pleaded guilty to possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1). Guzman's plea agreement included an appeal waiver. The district court
After Guzman attempted to distribute methamphetamine ("meth") to an undercover police officer, he was arrested. According to the presentence investigation report (PSR), Guzman possessed 370.5 grams of a mixture of meth (125.8 grams of actual meth based on a Drug Enforcement Agency lab test) during the final buy arrangement with the undercover officer.
The government filed an indictment charging that Guzman "did knowingly and intentionally possess with the intent to distribute 50 grams or more of a mixture and substance containing methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1)." At Guzman's initial appearance, the magistrate judge reviewed the indictment with Guzman and advised him that the "[p]ossible penalties" were a "minimum [of] 5 years to [a] maximum of 40 years['] imprisonment." Guzman pleaded not guilty to the charges set forth in the indictment. Thereafter, Guzman and the government entered into a plea agreement that was signed by Guzman, Guzman's attorney, and the government. The plea agreement provided, among other things, that (1) Guzman would plead guilty to violating § 841(a)(1); (2) the government had discretion to recommend any sentence within the statutory limits; and (3) Guzman waived his right to appeal, except for the ability to "appeal
Paragraph C of the plea agreement states, in relevant part:
(Emphasis added.)
At the change-of-plea hearing, the district court reviewed "the mandatory minimum and the possible maximum penalties" with Guzman, stating:
Guzman replied, "Yes, Your Honor." Guzman also acknowledged that he was waiving his right to appeal, except if the court sentenced him above the Guidelines range. The district court accepted Guzman's guilty plea, finding that the plea was "knowing and voluntary."
Guzman later filed a pro se motion to withdraw his guilty plea. He argued that the plea agreement violated his Fifth Amendment due process rights because the indictment charged him with possession with intent to deliver a 50-gram mixture of meth, but the factual basis statement of the plea agreement stated that he "possessed 50 grams or more of methamphetamine (pure) with the intent to distribute it to the undercover officer." Guzman subsequently withdrew this pro se motion. At the time of the withdrawal, Guzman stated that his withdrawal of the motion was knowingly, voluntarily, and intelligently made following four meetings with his counsel. The district court granted the motion to withdraw.
The PSR calculated a total offense level of 29 (base offense level of 32 with a three-level reduction for acceptance of responsibility) and a criminal history category of IV. The resulting Guidelines range was 121 to 151 months' imprisonment. Guzman filed no objections to the PSR. During the sentencing hearing, confusion arose as to the correct mandatory minimum. The district court initially stated that the mandatory minimum was five years' imprisonment, but the government and defense counsel ultimately agreed that the mandatory minimum was ten years' imprisonment based on the factual basis statement that Guzman had signed. The factual basis statement indicated that Guzman possessed with intent to distribute 50 grams or more of pure meth rather than a meth mixture. The district court sentenced Guzman to 121 months' imprisonment followed by five years of supervised release. The court based its sentence on Guzman's role in the offense and his lack of full cooperation with law enforcement.
Guzman argues that his case should be remanded for resentencing because the plea agreement was ambiguous as to the mandatory minimum for the offense. Guzman did not raise this issue before the district court and acknowledges that if we address the issue he raises, we would do so under a plain-error review standard.
United States v. Selvy, 619 F.3d 945, 949 (8th Cir.2010).
"When reviewing a purported [appeal] waiver [contained in a plea agreement], we must confirm that the appeal falls within the scope of the waiver and that both the waiver and plea agreement were entered into knowingly and voluntarily." U.S. v. Andis, 333 F.3d 886, 889-90 (8th Cir.2003). But if enforcing the waiver "would result in a miscarriage of justice," we will decline to enforce the waiver "[e]ven when these conditions are met." Id. at 890.
We have previously held that a defendant's appeal waiver in a plea agreement was "knowing and voluntary" where the "plea agreement state[d] that [the] guilty plea was `voluntary' and not coerced," the plea agreement stated that the defendant "discussed the case and her rights with her attorney and that she was advised of the nature and range of her possible sentence," and "[t]he district court confirmed that [the defendant] had reviewed the provisions of the plea agreement with her attorney." United States v. Cervantes, 420 F.3d 792, 794 (8th Cir.2005).
As in Cervantes, Guzman entered into the plea agreement after consulting with his attorney. Part A of the plea agreement provides that Guzman "agrees that he has been fully advised of his statutory and constitutional rights herein, and that he has been informed of the charges and allegations against him and the penalty therefor, and that he understands the same." Part O of the plea agreement provides, in relevant part:
At the change-of-plea hearing, the district court confirmed that Guzman had reviewed the plea agreement with counsel prior to signing it. It also confirmed Guzman's understanding of the appeal waiver. The court concluded that Guzman was "aware of the nature of the charges and the consequences of the plea, and that the plea of guilty is a knowing and voluntary plea supported by an independent basis in fact containing each of the essential elements of the offense."
As to Guzman's withdrawal of his pro se motion to withdraw his guilty plea, Guzman stated that his withdrawal of the motion was "knowingly, voluntarily, and intelligently made following four meetings with counsel."
Based on the record, we conclude "the appeal falls within the scope of the waiver and that both the waiver and plea agreement were entered into knowingly and voluntarily." Andis, 333 F.3d at 889-90. Furthermore, Guzman's sentence of 121 months' imprisonment falls below the statutory maximum for either possession with intent to distribute 50 grams of pure meth or 50 grams of a meth mixture. Enforcing the appeal waiver will not result in a miscarriage of justice. See Andis, 333 F.3d at 891.
For the aforementioned reasons, we conclude that Guzman waived his right to appeal whether the district court plainly erred in imposing a 121-month sentence based on possessing with the intent to distribute 50 grams or more of pure meth where the indictment alleged 50 grams or more of a meth mixture.
Accordingly, we dismiss Guzman's appeal.