                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-1270
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                   Joshua J. Lowe

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Western District of Arkansas - El Dorado
                                 ____________

                          Submitted: September 18, 2012
                             Filed: October 2, 2012
                                 [Unpublished]
                                 ____________

Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
                         ____________

PER CURIAM.

      Pursuant to a written plea agreement, Joshua Lowe pleaded guilty to one count
of conspiring to distribute more than 280 grams of cocaine base in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), and 846. The plea agreement provided: “[T]he
defendant waives the right to directly appeal the conviction and sentence pursuant to
28 U.S.C. § 1291 and/or 18 U.S.C. § 3742(a).” At sentencing, the district court1
applied a three-level aggravating-role enhancement pursuant to U.S.S.G. § 3B1.1(b),
overruling Lowe’s objection that there was insufficient evidence he had a managerial
or supervisory role in the drug-distribution conspiracy. The court granted the
government’s motion for a four-level downward departure pursuant to § 5K1.1 and
sentenced Lowe to 121 months in prison, the bottom of his advisory guidelines range.
Lowe appeals the sentence, contending that the district court erred in applying the
enhancement. Because Lowe knowingly and voluntarily waived his right to appeal
the application of this enhancement, and because enforcement of the waiver would
not result in a miscarriage of justice, we dismiss the appeal.

       We will enforce a waiver and dismiss an appeal if the issue raised “falls within
the scope of the waiver,” the defendant “knowingly and voluntarily” agreed to the
waiver, and enforcement of the waiver would not cause a “miscarriage of justice.”
United States v. Andis, 333 F.3d 886, 889-90 (8th Cir.) (en banc), cert. denied, 540
U.S. 997 (2003). Here, Lowe concedes that the issue he raises on appeal falls within
the scope of the waiver and that he knowingly and voluntarily waived his right to
appeal. He argues that enforcement of the waiver would result in a miscarriage of
justice because the district court impermissibly relied on disputed facts in applying
the aggravating-role enhancement. This argument is foreclosed by our decision in
Andis, 333 F.3d at 892, where we expressly held that “an allegation that the
sentencing judge misapplied the Sentencing Guidelines . . . is not subject to appeal
in the face of a valid appeal waiver.”

      As our post-Andis decisions have consistently recognized, enforcing an appeal
waiver does not result in a miscarriage of justice if the defendant’s sentence falls
within the statutory range for his offense. See United States v. Mousseau, 517 F.3d


      1
       The Honorable Harry F. Barnes, United States District Judge for the Western
District of Arkansas.

                                         -2-
1044, 1047-48 (8th Cir. 2008); United States v. Reynolds, 432 F.3d 821, 823-24 (8th
Cir. 2005); United States v. Benitez-Diaz, 337 F.3d 1080, 1083 (8th Cir. 2003).
Because Lowe’s 121-month sentence is only one month more than the ten-year
mandatory minimum sentence for his drug offense, dismissing his appeal of the
district court’s decision to apply an aggravating-role enhancement -- a decision based
in part on Lowe’s fact admissions in the plea agreement -- will not result in a
miscarriage of justice.

      Lowe’s appeal is therefore dismissed.
                     ______________________________




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