                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 04-2605
                               ________________

United States of America,                *
                                         *
            Appellee,                    *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      Western District of Missouri.
Durn C. Smith, Jr.,                      *
                                         *              [PUBLISHED]
            Appellant.                   *

                               ________________

                               Submitted: April 15, 2005
                                   Filed: July 7, 2005
                               ________________

Before WOLLMAN, HANSEN, and RILEY, Circuit Judges.
                      ________________

HANSEN, Circuit Judge.

       Durn C. Smith, Jr. pleaded guilty pursuant to a written plea agreement to
possession with intent to distribute five or more grams of cocaine base in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Smith appeals, arguing that the district
court1 erred in sentencing him to 235 months of imprisonment in violation of Blakely




      1
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
v. Washington, 124 S. Ct. 2531 (2004). Because Smith waived his right to appeal his
sentence as part of his plea agreement, we dismiss the appeal.

       Smith entered into a plea agreement with the government on November 26,
2003, in which Smith agreed to plead guilty to Count I of the indictment, and the
government agreed not to file additional criminal charges arising from the facts of the
case. In the plea agreement, Smith "agree[d] not to appeal or otherwise challenge the
constitutionality or legality of the Sentencing Guidelines," and "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."
(Appellee's Add. at 4-5, ¶ 9.)

       On June 23, 2004 (the day before the Supreme Court issued Blakely), the
district court sentenced Smith to 235 months of imprisonment, and Smith appealed
the sentence. Smith argues that the appeal waiver in his plea agreement does not
prevent our review of his appeal because he is not challenging the constitutionality
of the Guidelines as a whole, but only "the constitutionality of the process by which
facts material to his sentencing were proven." (Appellant's Br. at 12-13.) He also
invokes one of the exceptions to the appeal waiver, namely that his sentence exceeded
the statutory maximum as that term was defined in Blakely.

       As long as an appeal falls within the scope of the appeal waiver, and the
defendant enters both the plea agreement and the waiver knowingly and voluntarily,
we will enforce the waiver, unless to do so would result in 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). Smith does not allege that he entered either the plea agreement or
the appeal waiver unknowingly or involuntarily, and nothing in the record suggests
that he did. The district court questioned Smith about his understanding of the plea
agreement and the extent of the appeal waiver during the change of plea colloquy, and

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we conclude that Smith voluntarily and knowingly entered into the plea agreement
and appeal waiver. See United States v. Reeves, No. 04-2356, 2005 WL 1366432,
at *2 (8th Cir. June 10, 2005).

       Smith's Blakely challenge falls within the scope of his appeal waiver. Relying
on Blakely, Smith argues that the district court violated his Sixth Amendment rights
when it included drug quantities not admitted by him or found by a jury beyond a
reasonable doubt in setting his sentence. Smith argues that his base offense level
should have been 32 based on the admitted drug quantities rather than 34 based on
additional drug quantities as found by the district court. This Blakely challenge is
quintessentially a constitutional challenge to the Guidelines and is expressly
precluded by Smith's agreement not to appeal the constitutionality or legality of the
Guidelines. See United States v. Young, No. 04-2386, slip op. at 5 (8th Cir. July 5,
2005) (holding that a Blakely challenge fell within the defendant's waiver of his right
to appeal the constitutionality or legality of the Guidelines).

       Nor does Smith's appeal fall within the exception to his appeal waiver for a
sentence in excess of the statutory maximum. Smith claims that his sentence exceeds
the "statutory maximum" as that term is defined post-Blakely because his sentence
exceeds the "unenhanced" sentencing range that would have applied had the district
court not made enhancements based on judge-found facts. See Blakely, 124 S. Ct. at
2537 ("[T]he 'statutory maximum' for Apprendi [v. New Jersey, 530 U.S. 466 (2000),]
purposes is the maximum sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.") (emphasis omitted).
While this argument may have carried water for a short period of time following
Blakely, the Supreme Court put it to rest in United States v. Booker, 125 S. Ct. 738,
764-66 (2005), where the Court remedied the Sixth Amendment concern with the
Guidelines by excising the statutory provisions making the Guidelines mandatory.
"Post-Booker, the Guidelines ranges are merely advisory ranges, and the criminal
statute of conviction provides the maximum statutory sentence." Young, No. 04-

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2386, slip op. at 5. Further, Smith stated in the plea agreement that he understood
that the statutory maximum sentence for the charge to which he pleaded guilty was
40 years of imprisonment. See United States v. Fogg, No. 04-2723, 2005 WL
1186535, at *2 (8th Cir. May 20, 2005) ("[P]lea agreements are contractual in nature
and are to be interpreted according to the parties' intentions, looking to what the
parties reasonably understood to be the terms."). Smith's 235-month sentence was
well within the 40-year statutory maximum and hence, falls within the scope of his
appeal waiver. See Reeves, 2005 WL 1366432 at *3 (enforcing appeal waiver and
defining statutory range to be the range contained in 21 U.S.C. § 841(b)(1)(B) rather
than the Guidelines range).

      Accordingly, we dismiss Smith's appeal.
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