                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2453
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of North Dakota.
Jason Alan Azure,                       *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: December 9, 2008
                                Filed: July 8, 2009
                                 ___________

Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

      Jason Alan Azure, a member of the Turtle Mountain Chippewa Tribe, pleaded
guilty to assault resulting in serious bodily injury, in violation of 18 U.S.C.
§§ 113(a)(6) and 1153. The district court1 sentenced Azure to 46 months’
imprisonment, the bottom of the advisory guideline range. Azure appeals, raising a
number of sentencing issues. Because we conclude that he knowingly and voluntarily
waived his right to appeal on these grounds, we dismiss the appeal.


      1
       The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.
       On July 11, 2007, Azure assaulted Roxanne Laducer in Laducer’s home.
During the altercation, Azure bit Laducer above the right eye, removing a portion of
skin and tissue, including part of her eyebrow. Azure also bit Laducer’s son, James,
who had entered the room after seeing Azure and his mother struggling. At the time
of the altercation, Azure was under a tribal court protection order mandating that he
have no unauthorized contact with Laducer.

       A grand jury returned a two-count indictment against Azure, charging him with
assault resulting in serious bodily injury and assault with a dangerous weapon,
namely, his teeth. On March 18, 2008, pursuant to a plea agreement, Azure pleaded
guilty to assault resulting in serious bodily injury. Paragraph 23 of the plea agreement
contained an appeal waiver that preserved only Azure’s “right to appeal any sentence
imposed which is greater than the upper limit of the regularly determined advisory
guideline range.” The district court discussed the appeal waiver during the change of
plea hearing, emphasizing that if Azure was sentenced “within the sentencing
guidelines” that were found to apply to him, then he was “giving up” his right to
appeal the sentence.

       The presentence report recommended an advisory guideline range of 46 to 57
months’ imprisonment, corresponding to a total offense level of 22 and a criminal
history category of II. The total offense level was derived from a base offense level
of 14, USSG § 2A2.2, a five-level increase for causing serious bodily injury, id.
§ 2A2.2(b)(3)(b), a four-level increase for using a dangerous weapon, id.
§ 2A2.2(b)(2), a two-level increase for violating a tribal court protection order, id.
§ 2A2.2(b)(5), and a three-level decrease for acceptance of responsibility. Id.
§ 3E1.1(b). Azure objected to the four-level increase, arguing that teeth do not
constitute a dangerous weapon.

      At the sentencing hearing on June 18, 2008, the district court adopted the
guideline computations recommended in the presentence report. Azure urged the

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court to impose a sentence below the recommended range, and he also sought credit
for 90 days that he spent in tribal jail on charges associated with the altercation. The
court declined to grant the requested credit, finding that it was unclear whether Azure
had served a specific amount of time in tribal jail that was directly related to the same
offense for which he was prosecuted in federal court. The court also determined that
a term of 46 months’ imprisonment was appropriate in light of the factors set forth in
18 U.S.C. § 3553(a).

       On appeal, Azure contends that the court committed procedural error by failing
to consider Laducer’s contributing role in the altercation and by failing to explain
adequately its consideration of the sentencing factors enumerated in § 3553(a). He
also argues that the sentence is substantively unreasonable, because he should have
received credit for the 90 days he spent in tribal jail. The government counters that
Azure’s appeal should be dismissed based on the waiver of appellate rights contained
in the plea agreement. Alternatively, the government argues that the sentence should
be affirmed on the merits.

       A defendant may waive his right to appeal. We will generally enforce such a
waiver as long as the appeal falls within the scope of the waiver, and the defendant’s
accession to the plea agreement and the waiver was knowing and voluntary. United
States v. McIntosh, 492 F.3d 956, 959 (8th Cir. 2007). Our court recognizes a narrow
exception to the enforcement of waivers when enforcement would result in “a
miscarriage of justice.” United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (en
banc). The government bears the burden of establishing that the plea agreement
clearly and unambiguously waives the defendant’s right to appeal, and ambiguities in
the agreement are construed against the government. Id. We review de novo whether
a defendant waived the right to appeal a sentence. United States v. Michelsen, 141
F.3d 867, 871 (8th Cir. 1998).




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      The waiver in Azure’s plea agreement states, in relevant part:

      Defendant also waives any right to appeal the sentence under Title 18,
      United States Code, § 3742(a), as recognized and permitted by United
      States v. Andis, 332 [sic] F.3d 886 (8th Cir. 2003). Expressly excluded
      from the waiver of appeal is Defendant’s right to appeal any sentence
      imposed which is greater than the regularly determined advisory
      guideline range.

(Am. Plea Agreement ¶ 23, R. Doc. 20, at 8-9) (emphasis added).


      The government observes that the district court determined an advisory
guideline range of 46 to 57 months’ imprisonment, and sentenced Azure within that
range. It argues, therefore, that Azure was sentenced within the “regularly determined
advisory guideline range,” and that he waived the right to appeal his sentence. Azure
counters that the phrase “regularly determined advisory guideline range” in the
exclusion from the waiver is ambiguous, because it fails to specify who decides the
guideline range and at what point in the sentencing process the range is to be
determined. On this basis, Azure contends that the waiver is unenforceable. We
conclude that the government has the better argument in this case.


       The term “guideline range” is a familiar term of art in the advisory guideline
system. The application instructions in the United States Sentencing Commission
Guidelines Manual direct the district court to determine an offense level and criminal
history category for each defendant, and then to determine the guideline range that
corresponds to the offense level and criminal history category. USSG § 1B1.1(g); see
id. Ch. 5, Pt. A (Sentencing Table). For each pairing of an offense level and criminal
history category, the sentencing table in Chapter 5 sets forth a range of imprisonment
known as the guideline range. Part K of Chapter 5 then provides that the court “may
depart from the applicable guideline range” in certain circumstances. Id.
§ 5K2.0(a)(1). After United States v. Booker, 543 U.S. 220 (2005), the court also may

                                         -4-
impose a sentence outside the guideline range based on its application of 18 U.S.C.
§ 3553(a).


       In this case, the district court followed the procedure set forth in the application
instructions, calculated a total offense level of 22 and a criminal history category II,
and determined a guideline range of 46 to 57 months’ imprisonment. The court then
sentenced Azure to 46 months’ imprisonment. Thus, if the guideline range
determined by the court pursuant to USSG § 1B1.1(g) is the “regularly determined
guideline range,” then Azure has waived his right to appeal the sentence, because his
sentence was not “greater than the regularly determined advisory guideline range.”


       Azure argues that the waiver should not be enforced because the phrase
“regularly determined advisory guideline range” is unclear about who is to determine
the range, and about when the range is to be determined. He suggests that the
agreement could refer to the advisory guideline range determined by the prosecution
or the probation office, rather than by the district court. He says that the agreement
could refer to the guideline range determined before the application of any offense
level enhancements, or to the range determined after any enhancements but before any
departures deemed appropriate by the district court. Azure relies on United States v.
Kemp, 530 F.3d 719 (8th Cir. 2008), where this court held that the phrase “advisory
guideline range established by the Court for the offense” was unclear, because it could
refer either to the guideline range determined based on the defendant’s offense level
and criminal history category without any departures, or to a range calculated by the
sentencing court after an upward departure. Id. at 723; see also United States v.
Azure, 536 F.3d 922, 929 (8th Cir. 2008).


      We are not convinced that there is any material ambiguity in the written plea
agreement that permits Azure to avoid the waiver. The natural reading of the
agreement is that the “regularly determined advisory guideline range” is the guideline


                                           -5-
range determined by the district court. The prosecution may advocate for a particular
guideline range, and the probation office may recommend a guideline range, but the
responsibility to determine the advisory range rests with the sentencing court. USSG
§ 1B1.1(g); see Gall v. United States, 128 S. Ct. 586, 596 (2007). In any event, any
ambiguity in the agreement about which of the three actors is meant to identify the
“regularly determined advisory guideline range” is immaterial in this case. The
guideline range determined by the court was the same guideline range recommended
by the probation office and advocated by the prosecution.


       Nor is there material ambiguity in this case about the stage of the sentencing
process at which the guideline range is “regularly determined.” There is no “guideline
range” determined before the court decides whether specific offense characteristics
or adjustments from Chapters Two and Three apply to a defendant. The guideline
range is determined only after those matters are resolved. USSG § 1B1.1(a)-(g).
Kemp rejected the government’s argument that the “advisory guideline range”
necessarily referred to a range determined after an upward departure pursuant to
USSG §§ 4A1.3 and 5K2.0. 530 F.3d at 723. We concluded that giving the defendant
the benefit of the doubt, “advisory guideline range” could well mean the guideline
range before any upward departure. Id. But Kemp is no help to Azure; it merely
establishes that the phrase “regularly determined guideline range” in Azure’s plea
agreement may refer, when interpreted favorably to the defendant, to the guideline
range determined before any upward departure. If that is the phrase’s meaning, then
Azure’s agreement allows an appeal of a sentence when it is greater than the pre-
departure guideline range. Azure, however, seeks to appeal a sentence within a pre-
departure guideline range, so the waiver applies.


       The colloquy between the court and Azure at the change of plea hearing
reinforces our conclusion that Azure reasonably understood that he waived his right
to appeal under these circumstances. The district court clearly advised Azure that his
guilty plea would waive his right to appeal any sentence that was within the advisory

                                         -6-
guideline range. The court explained that “if I sentence you within the sentencing
guidelines that are found to apply to you, you’re giving up your right to appeal that
sentence,” and then again that “if I sentence you within the sentencing guideline range
found to apply to you, you are waiving your right to appeal that sentence to a higher
court.” Azure acknowledged that he understood these admonitions. The district
court’s comments plainly referred to the guideline range ultimately found by the court,
and the explanations served to clarify and reinforce the waiver set forth in the written
plea agreement. See United States v. Wilken, 498 F.3d 1160, 1167-68 (10th Cir. 2007)
(noting that a court’s statements prior to accepting a waiver of appellate rights can
eliminate ambiguity in the waiver).


       Azure contends that even if the written waiver and plea colloquy establish an
unambiguous waiver, some of the district court’s statements during the sentencing
hearing – suggesting that Azure could appeal certain conclusions reached by the court
at sentencing – render the waiver unenforceable. This argument encounters a
formidable obstacle in United States v. Michelsen, 141 F.3d 867 (8th Cir. 1998),
where we concluded that “[a]ny statement by the court at the sentencing hearing could
not have affected [the defendant’s] decision, made nearly three months earlier, to
plead guilty and waive his appellate rights.” Id. at 872. Azure asserts that his
situation is distinguishable, because the court in Michelsen merely recited boilerplate
language from the rules of criminal procedure that the defendant “may appeal this
sentence within ten days after the filing of the judgment,” id., whereas the district
court in this case specifically advised that Azure could appeal the court’s application
of two specific offense characteristics, i.e., the four-level increase for use of a
dangerous weapon during the altercation, and the two-level increase for violating a
court protection order.2


      2
       Azure points to this exchange near the end of the sentencing hearing:

      THE COURT: There was a provision in your plea agreement where you

                                          -7-
       While the court’s statements in this case were more specific than those of the
sentencing judge in Michelsen, the logic of Michelsen’s legal conclusion is fully
applicable here. Michelsen did not turn on the specificity of the district court’s
comments at sentencing, but rather on the timing of the statements, and the
impossibility that statements by the court at a sentencing hearing could have
influenced a decision made by the defendant at a previous guilty plea hearing. As in
Michelsen, whatever the court said at Azure’s sentencing hearing “could not have
affected [his] decision, made nearly three months earlier, to plead guilty and waive his
appellate rights.” 141 F.3d at 872; see also United States v. Fisher, 232 F.3d 301, 304
(2d Cir. 2000) (“If enforceable when entered, the waiver does not lose its effectiveness
because the district judge gives the defendant post-sentence advice inconsistent with
the waiver. No justifiable reliance has been placed on such advice.”).


       At any rate, Azure’s argument fails even on its own terms. Even assuming that
the district court’s comments at sentencing limited the scope of the appeal waiver,
Azure’s appeal does not seek to take advantage of that limitation. The only issues
raised by Azure on appeal are that the court committed procedural error when
imposing sentence, and that the court should have applied a 90-day credit for time that
Azure served in tribal jail. Azure does not challenge either of the two specific offense


       waived your right to appeal as long as you were sentenced within the
       sentencing guideline range that was found to apply to you.

       THE DEFENDANT: But I was not.

       THE COURT: Well, that’s – the million dollar question on appeal. And
       obviously the appeal issues would concern the sentencing guidelines that
       were triggered in this case . . . namely, the use of teeth as a dangerous
       weapon and the violation of the Court protection order, but you can –
       you can certainly appeal those issues if you wish to do so.

(S. Tr. at 34).

                                          -8-
characteristics that were mentioned during the colloquy that Azure now says
effectively nullified his previous appeal waiver. Azure’s proposed distinction of
Michelsen, therefore, provides no basis to reach the issues raised on appeal.


       For these reasons, we conclude that Azure knowingly and voluntarily waived
his right to appeal a sentence within the advisory guideline range. Enforcement of the
waiver will not result in a “miscarriage of justice” as defined by this court. See Andis,
333 F.3d at 891. Accordingly, the appeal is dismissed.
                         ______________________________




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