                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-1728
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                  Carlos Joe Grady

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
               for the Eastern District of Missouri - Cape Girardeau
                                  ____________

                             Submitted: April 15, 2019
                               Filed: July 26, 2019
                                   [Published]
                                  ____________

Before SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.
                             ____________

PER CURIAM.

      Pursuant to a written agreement containing an appeal waiver, Carlos Joe Grady
pleaded guilty to one count of possession with intent to distribute 50 grams or more
of a mixture or substance containing methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(viii). At sentencing, and over Grady’s objection, the
district court1 found that Grady had two prior felony convictions for a controlled
substance offense and applied the career offender enhancement under United States
Sentencing Guidelines § 4B1.1(a) (2016), resulting in a Guidelines range of 188 to
235 months’ imprisonment. The court sentenced Grady to 188 months, and he now
appeals his sentence on various grounds.

                                           I

        Grady asserts that the district court committed three sentencing errors: (1)
finding that two of his prior felony convictions “counted separately” for the purposes
of his Criminal History under the Guidelines, triggering the career offender
enhancement; (2) failing to adequately explain the reasons for its chosen sentence and
its rejection of Grady’s request for a downward variance; and (3) failing to consider
any of the 18 U.S.C. § 3553(a) factors, thereby imposing a substantively unreasonable
sentence. The government argues that other than Grady’s challenge to the career
offender enhancement, Grady’s claims are barred by the appeal waiver in his plea
agreement. We first analyze whether the appeal waiver bars Grady’s second and third
claims and then address the merits of his challenge to his career offender status.

       Grady’s plea agreement provides, “[i]n the event the Court accepts the plea,
and after determining the appropriate Total Offense Level, sentences the defendant
within or below the corresponding range, then, as a part of this agreement, the
defendant hereby waives all rights to appeal all sentencing issues other than Criminal
History.” We will enforce the waiver of rights to appeal when the government
demonstrates that the issues raised on appeal are “within the scope of the waiver,” the
plea agreement and waiver were entered into “knowingly and voluntarily,” and
enforcement of the waiver would not “result in a miscarriage of justice.’” United
States v. Andis, 333 F.3d 886, 889–90 (8th Cir. 2003) (en banc). As the government

      1
       The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
                                     -2-
contends, Grady’s claims that his sentence is substantively unreasonable and that the
district court failed to adequately explain its chosen sentence and its rejection of his
request for a variance are “sentencing issues other than Criminal History.” They thus
fall within the scope of Grady’s waiver. The career offender issue, on the other hand,
does not.

       We also conclude that Grady’s plea and waiver were entered into knowingly
and voluntarily. At the change of plea hearing, the district court confirmed that
Grady had read his plea agreement, reviewed it “in detail” with his counsel, and
understood its contents. The court also asked Grady if his guilty plea was the product
of force, coercion, or threats, to which Grady replied, “No.” The court then addressed
the appeal waiver, explaining to Grady that if the court imposed a sentence within or
below the Guidelines range, Grady waived his right to appeal his sentence, subject
to only one exception: Grady could appeal “the determination about [his] criminal
history,” that is, “[his] criminal record [] and nothing else.” Grady replied that he
agreed. Based on this record, we are satisfied that Grady entered into his plea and
waived his appellate rights knowingly and voluntarily. See Andis, 333 F.3d at
890–91 (“One important way a district court can help ensure that a plea agreement
and corresponding waiver are entered into knowingly and voluntarily is to properly
question a defendant about his or her decision to enter that agreement and waive the
right to appeal.”); see also United States v. Guzman, 707 F.3d 938, 942 (8th Cir.
2013) (concluding that plea agreement and waiver were knowing and voluntary where
district court confirmed that defendant had read plea agreement with counsel and
understood the appeal waiver). Furthermore, we conclude that enforcement of the
waiver would not result in a miscarriage of justice. See Andis, 333 F.3d at 891–92.
We thus enforce Grady’s appeal waiver as to his second and third claims, and we
turn to his challenge to the Criminal History determinations supporting the district
court’s application of the career offender enhancement.




                                          -3-
                                           II

       A defendant may be classified as a career offender if, among other things, he
“has at least two prior felony convictions of either a crime of violence or a controlled
substance offense.” USSG § 4B1.1(a). The district court determined that Grady’s
2007 and 2010 Missouri convictions for distribution of a controlled substance each
qualified as a prior felony conviction for a controlled substance offense. Like he did
before the district court, Grady argues on appeal that these two convictions should
count as just one qualifying conviction, not two. “We review the district court’s
interpretation and application of the Sentencing Guidelines de novo and review its
application of the Guidelines to the facts for clear error.” United States v. Armstrong,
782 F.3d 1028, 1036 (8th Cir. 2015).

       Under the Guidelines, “[t]he term ‘two prior felony convictions’ means (1) the
defendant committed the instant offense of conviction subsequent to sustaining at
least two felony convictions of . . . a controlled substance offense . . . , and (2) the
sentences for at least two of the aforementioned felony convictions are counted
separately under the provisions of § 4A1.1(a), (b), or (c).” § 4B1.2(c). Section
4A1.2(a)(2), in turn, specifies that to apply § 4A1.1(a)–(c), “[p]rior sentences always
are counted separately if the sentences were imposed for offenses that were separated
by an intervening arrest.” Here, Grady’s 2007 and 2010 convictions were separated
by an intervening arrest and thus were properly counted separately. As set forth in
the Presentence Investigation Report, Grady’s 2007 conviction resulted from a
February 2007 arrest. Almost three years later, Grady was arrested again, leading to
his 2010 conviction. Accordingly, the district court correctly counted each conviction
as a predicate offense and properly applied the career offender enhancement. See
Armstrong, 782 F.3d at 1036–37 (holding that two convictions counted as predicate
controlled substance offenses because the convictions were separated by an
intervening arrest).

      Accordingly, we affirm Grady’s sentence.
                     ______________________________

                                          -4-
