United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-2564
                        ___________________________

                             United States of America

                                       Plaintiff - Appellee

                                         v.

                             Jeffrey J. Hester-Jackson

                                    Defendant - Appellant
                                  ____________

                     Appeal from United States District Court
                    for the District of North Dakota - Bismarck
                                   ____________

                            Submitted: April 16, 2020
                               Filed: August 12, 2020
                                 [Unpublished]
                                ____________

Before KELLY, WOLLMAN, and STRAS, Circuit Judges.
                          ____________

PER CURIAM.

       Jeffrey Hester-Jackson pleaded guilty to one count of conspiracy to
distribute and possess with intent to distribute oxycodone in violation of 21 U.S.C.
§ 846. The district court1 calculated a Sentencing Guidelines range of 57–71
months and imposed a 68-month sentence. Hester-Jackson appeals, alleging the
district court erred in calculating both his offense level and his criminal-history
score. The government moves to dismiss based on an appeal waiver.

       The parties entered into a plea agreement in this case in which they
“agree[d] that they expect[ed] the following Sentencing Guidelines may apply”: a
base offense level of 24 and a three-level enhancement for Hester-Jackson’s role in
the offense. Hester-Jackson reserved the right to contest the role enhancement at
sentencing. The plea agreement further stated that neither the Probation Office nor
the Court was “bound by the agreement of the parties as to the Sentencing
Guidelines.” The agreement also contained an appeal waiver in which Hester-
Jackson “reserve[d] only the right to appeal from a sentence that [wa]s greater than
the upper limit of the Court-determined Sentencing Guidelines range.”

       “We review de novo whether a defendant waived the right to appeal a
sentence.” United States v. Azure, 

, 772 (8th Cir. 2009). Hester-
Jackson “does not dispute he knowingly and voluntarily waived his appellate
rights.” See United States v. Andis, 

, 889–90 (8th Cir. 2003) (en
banc) (both waiver and plea agreement must be entered into “knowingly and
voluntarily”). Instead, Hester-Jackson asserts that his appeal does not fall within
the scope of the waiver.

purported waiver, we must
confirm that the appeal falls with the scope of the waiver . . . .”). Specifically, he
argues that because the district court erred in calculating his Guidelines range, his
sentence was “greater than the upper limit of the Court-determined Sentencing
Guidelines range.” He reasons that, had the district court sustained one or both of
his objections at sentencing, his Guidelines range would have been lower; and a



      1
       The Honorable Daniel L. Hovland, then Chief Judge, United States District
Court for the District of North Dakota.

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sentence of 68 months is “greater than the upper limit” of these alternative, lower
ranges.

       We conclude that the government has met its burden of proving that the plea
agreement in this case “clearly and unambiguously waives [Hester-Jackson’s] right
to appeal.” See United States v. Sisco, 

, 795 (8th Cir. 2009) (quoting

). Any agreements reached by Hester-Jackson and the
government in the plea agreement regarding the application of the Sentencing
Guidelines did not bind the district court. Instead, the district court was required to
calculate its own “Court-determined Sentencing Guidelines range.” Indeed, the
court had to resolve Hester-Jackson’s objection to the role enhancement and
determine his criminal-history category, as the parties had not reached an
agreement as to either. At sentencing, the district court overruled Hester-Jackson’s
objections, calculated a Sentencing Guidelines range of 57–71 months, and
imposed a within-range sentence of 68 months. Hester-Jackson makes no
argument that enforcing the appeal waiver in his case “would result in a
miscarriage of justice,” 

, and we agree that it would not. As
a result, Hester-Jackson’s appeal waiver applies, and we dismiss his appeal.
                        ______________________________




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