United States Court of Appeals
         For the Eighth Circuit
     ___________________________

             No. 16-4101
     ___________________________

          United States of America

     lllllllllllllllllllll Plaintiff - Appellee

                        v.

          Jesus Sotelo-Valdovinos

   lllllllllllllllllllll Defendant - Appellant
      ___________________________

             No. 17-1159
     ___________________________

          United States of America

     lllllllllllllllllllll Plaintiff - Appellee

                        v.

         Eduardo Penaloza-Romero

   lllllllllllllllllllll Defendant - Appellant
                   ____________

 Appeals from United States District Court
  for the District of Minnesota - St. Paul
              ____________
                           Submitted: December 11, 2017
                              Filed: February 9, 2018
                                    [Published]
                                  ____________

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

PER CURIAM.

        Eduardo Penaloza-Romero was a leader of a drug trafficking organization that
transported methamphetamine from California and distributed it in Minneapolis and
St. Paul, Minnesota. Jesus Sotelo-Valdovinos assisted by arranging a delivery of
methamphetamine from California to Minnesota and encouraging more trafficking
after the driver was arrested. Penaloza-Romero and Sotelo-Valdovinos were indicted
and pleaded guilty to conspiracy to distribute methamphetamine in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1), and 846. Each signed a plea agreement that included
a waiver of the right to appeal. In relevant part, each waiver stated that the defendant
“waives the right to appeal or to contest, directly or collaterally, his guilty plea or
sentence on any ground, unless the sentence of imprisonment exceeds” 327 months
imprisonment for Penaloza-Romero and 210 months imprisonment for Sotelo-
Valdovinos. The district court1 sentenced Penaloza-Romero to 196 months in prison
and Sotelo-Valdovinos to 75 months in prison. Both appeal. We enforce the appeal
waivers and dismiss the appeals.

      The right to appeal may be waived through a plea agreement. United States v.
Andis, 333 F.3d 886, 889 (8th Cir.) (en banc), cert. denied, 540 U.S. 997 (2003). We
review the validity of an appeal waiver de novo. United States v. Sisco, 576 F.3d
791, 795 (8th Cir. 2009). In reviewing an appeal waiver, “we must confirm that the


      1
       The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.

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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.
Here, the change of plea hearings and plea agreements confirm that Penaloza-Romero
and Sotelo-Valdovinos knowingly and voluntarily accepted the plea agreements and
waived their rights to appeal. The prison sentences imposed are well within the scope
of the appeal waivers. Id. at 892. However, we will not enforce an appeal waiver if
doing so would result in a miscarriage of justice. Id. at 890.

       Penaloza-Romero argues the district court procedurally erred in considering
grounds for a variance under 18 U.S.C. § 3553(a) before determining whether he
should receive a departure for substantial assistance under U.S.S.G. § 5K1.1. He
argues that his 196-month sentence is substantively unreasonable when the § 5K1.1
and § 3553(a) variance factors are properly considered. Enforcing the appeal waiver
will not result in a miscarriage of justice because Penaloza-Romero was sentenced to
196 months for an offense that could have resulted in a sentence of life imprisonment.
See 21 U.S.C. § 841(b)(1)(A); Sisco, 576 F.3d at 795.

       Sotelo-Valdovinos is a hechicero -- a spiritual healer in the Mexican Santa
Muerte folk religion. As a hechicero, he provided spiritual advice to clients in
California, including two who were involved in the drug trafficking. At sentencing,
defense counsel emphasized Sotelo-Valdovinos’s role as a spiritual advisor in arguing
for a downward variance. In explaining why it was denying a variance, the district
court commented that, as articulated by defense counsel, Sotelo-Valdovinos “got
esteem as an important spiritual leader and healer in . . . a world of drug trafficking,
and so I do think there is a risk that [he] might reoffend . . . . [T]hat is an aggravating
circumstance in this case that balances out with the mitigating circumstance.”

       Citing this comment, Sotelo-Valdovinos argues the district court abused its
discretion when it impermissibly considered his Santa Muerta faith as a sentencing
factor, making enforcement of his appeal waiver a miscarriage of justice. In this

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circuit, miscarriage of justice is an “extremely narrow” exception we have thus far
applied only to an illegal sentence; “[a]ny sentence imposed within the statutory
range is not subject to appeal.” Andis, 333 F.3d at 892. Some circuits have
recognized, but to our knowledge never applied, the principle that basing a sentence
on a constitutionally impermissible factor such as race would fall within the
miscarriage of justice exception. See Andis, 333 F.3d at 891, citing United States v.
Teeter, 257 F.3d 14, 25 n.9 & 10 (1st Cir. 2001). Here, the district court did not base
its sentencing decision on Sotelo-Valdovinos’s faith or religion. Rather, the court
concluded that the environment in which Sotelo-Valdovinos functioned as a “spiritual
healer” made it more likely that he would reoffend. That is a legitimate sentencing
consideration. Sotelo-Valdovinos’s 75-month sentence was within the scope of his
knowing and voluntary appeal waiver, and enforcing the waiver will not otherwise
result in a miscarriage of justice because the sentence was substantially below 210
months, the sentence above which he preserved his right to appeal.

      For these reasons, we enforce the appeal waivers and dismiss both appeals.
                      ______________________________




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