                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1298
                                   ___________

United States of America,            *
                                     *
          Plaintiff - Appellee,      * Appeal from the United States
                                     * District Court for the Western
    v.                               * District of Missouri.
                                     *
Edmundo R. Rosales,                  *       [UNPUBLISHED]
                                     *
          Defendant - Appellant.     *
                                ___________

                              Submitted: October 18, 2004
                            Resubmitted: March 14, 2005
                                 Filed: May 18, 2005
                                  ___________

Before MURPHY, HEANEY, and BEAM, Circuit Judges.
                          ___________

PER CURIAM.

      Edmundo Rosales pled guilty to one count of conspiracy to distribute cocaine.
The district court1 found him responsible for 12 kilograms of cocaine and 365 pounds
of marijuana with a base offense level of 32, and it sentenced him to serve 121
months. Rosales appeals, arguing that the drug quantity was incorrectly determined
and that he should have received a base offense level of 26. We affirm the judgment.



      1
      The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri.
       Rosales was charged with two counts of conspiracy to distribute cocaine. He
entered into a plea agreement under which he agreed to plead guilty to the first count,
and the government agreed in turn to dismiss the second count. The parties also
reached agreement on some sentencing aspects. They agreed that the amount of
cocaine for which Rosales was responsible was at least 500 grams and that his base
offense level was at least 26. They also anticipated that Rosales would receive a three
level reduction for acceptance of responsibility. He failed to appear on the date set
for sentencing, however, and consequently lost credit for acceptance and received a
two level enhancement for obstruction of justice. In the plea agreement Rosales also
made a detailed waiver of his right to appeal his sentence.

       In his plea agreement, Rosales "expressly waive[d] the right to appeal his
sentence, directly or collaterally, on any ground except for an upward departure by
the sentencing judge, a sentence in excess of the statutory maximum, or a sentence
in violation of law apart from the Sentencing Guidelines." This waiver was far
reaching, and Rosales also "agree[d] not to appeal or otherwise challenge the
constitutionality or legality of the Sentencing Guidelines." Rosales nevertheless now
seeks to argue on appeal that the district court erred in its sentencing findings and its
application of the guidelines.

       Rosales claims that the evidence connecting him to 11 kilograms of cocaine
and 360 pounds of marijuana was unreliable and that those amounts should not have
been attributed to him. By his calculation, he should have been found responsible for
less than two kilograms of cocaine, for a base offense level of 26, and his sentencing
range should have been 63-78 months. Since his appeal does not challenge any
upward departure, a sentence above the statutory maximum, or a nonguideline error,
we conclude it is covered by the waiver in his plea agreement.

      When a defendant enters a waiver of appeal knowingly and voluntarily as
Rosales concedes he did, the waiver will be enforced absent a miscarriage of justice.

                                          -2-
United States v. Andis, 333 F.3d 886, 891 (8th Cir. 2003) (en banc). Rosales argues
that the sentence he received is a miscarriage of justice because the district court's
finding of drug quantity rested on "flimsy" evidence. We have recognized that the
miscarriage of justice exception is "extremely narrow" and designed to correct
sentences not authorized by the judgment of conviction or outside the statutory range.
Id. at 892. There is no indication that a miscarriage of justice occurred in this case
from the district court's weighing of the evidence presented at the sentencing hearing
or its calculation of the amount of drugs for which Rosales was responsible.

      We review the sentence imposed for unreasonableness, guided by the factors
in 18 U.S.C. § 3553(a). United States v. Booker, 125 S. Ct. 738, 765-66 (2005);
United States v. Killgo, 397 F.3d 628, 630 n.4 (8th Cir. 2005) (reviewing sentence
for unreasonableness despite plea waiver that made Booker's Sixth Amendment
holding inapplicable). We conclude that the sentence reflects "the nature and
circumstances of the offense and the history and characteristics of the defendant," §
3553(a)(1), and that the inclusion of relevant conduct relates to the need to "protect
the public from further crimes of the defendant," § 3553(a)(2)(C), and the need to
"avoid unwarranted sentence disparities," § 3553(a)(6). See Killgo, 397 F.3d at 631
n.5.

      We affirm the judgment of the district court and grant counsel's request to
withdraw.2



      2
        In an opinion issued on November 2, 2004, we affirmed the judgment of the
district court but indicated that the mandate would not issue until after the Supreme
Court released its opinions in United States v. Booker and United States v. Fanfan
and thus denied counsel's request to withdraw. After the Court issued United States
v. Booker, 125 S. Ct. 738 (2005), on January 12, 2005, counsel submitted
supplemental briefing about Booker's effect on Rosales' case, which we considered
before deciding our final disposition of the case.

                                         -3-
HEANEY, Circuit Judge, concurring.

       I concur fully in the majority’s assessment that Edmundo Rosales’s sentence
is not an unreasonable one. I further agree that, based on our circuit precedent,
Rosales’s claim regarding the constitutionality of the guidelines is foreclosed by his
plea agreement waiver of the right to appeal that issue. In United States v. Killgo,
397 F.3d 628, 629 n.2 (8th Cir. 2005), our court noted that a waiver of appellate
rights in a plea agreement would preclude the defendant from raising a Booker3 claim
on appeal. I write separately to state my view that Killgo was not correctly decided.

       As recognized by our court en banc in United States v. Andis, 333 F.3d 886,
891 (8th Cir. 2003), appellate waivers are not iron-clad; they are not binding where
a miscarriage of justice would result from their enforcement. Andis and other circuit
authority makes clear that one such instance of a miscarriage of justice is where a
sentence is illegal, in that the sentence is beyond the maximum statutory penalty. Id.
at 892 (citing United States v. Peltier, 312 F.3d 938, 942; United States v.
Greatwalker, 285 F.3d 727, 729 (8th Cir. 2002)). Blakely v. Washington, 124 S. Ct.
2531, 2537 (2004), counsels that the statutory maximum is the sentence a court may
impose based on admitted conduct or facts proven to a jury. Reading these cases
together, Rosales’s appellate argument that the court calculated the drug quantity
attributable to him based on conduct that was not admitted is an argument that his
sentence was beyond the statutory maximum and thus illegal. This is precisely the
type of appeal that the Andis court held could be brought despite a waiver of
appellate rights. Because Killgo remains the law of our circuit at this point, however,
I concur in the majority’s holding that Rosales cannot pursue a Booker claim because
of his waiver.
                         ______________________________



      3
       United States v. Booker, 125 S. Ct. 738 (2005).

                                         -4-
