                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 11-2492
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Kou Lee, also known as Kuffy,            *
                                         * [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: March 12, 2012
                                 Filed: March 23, 2012
                                  ___________

Before MURPHY, ARNOLD, and GRUENDER, Circuit Judges.
                          ___________

PER CURIAM.

      Kou Lee pled guilty to conspiring to distribute 50 grams or more of actual
methamphetamine under a plea agreement in which he waived his rights to appeal if
he were sentenced to fewer than 360 months. Lee was initially sentenced to 300
months and then resentenced to 264 months after the parties realized that the original
sentence was based on an erroneous calculation of the drug weight. Lee appeals,
arguing that the revised offense level rendered his waiver invalid and that the district
court1 should have provided a greater downward departure. Because we conclude
that Lee waived his right to appeal on these grounds, we dismiss the appeal.

       After being indicted along with twelve codefendants on numerous drug
charges, Lee entered a plea agreement on one conspiracy charge. The agreement
stated that the parties had agreed on several sentencing guideline factors, including
the base offense level, the statutory minimum of twenty years, an adjustment for
acceptance of responsibility, and the specific offense characteristics. It also noted
that the parties disagreed on the potential application of a four level enhancement
under U.S.S.G. § 3B1.1(a) for Lee's role as a leader or organizer of the conspiracy and
Lee's criminal history category. The agreement included a provision stating that "the
parties shall not be entitled to withdraw from the plea agreement" even if the district
court determined the guideline factors to be different than outlined in the agreement.
Lee also agreed to waive his right to appeal his sentence "unless the Court
sentence[d] [him] above 360 months in prison."

       The presentence investigation report (PSR) calculated Lee's base offense level
as 38 based on the amount of drugs involved. It applied a four level enhancement for
his role in the conspiracy and a three level reduction for acceptance of responsibility,
resulting in a total offense level of 39. The PSR determined Lee's criminal history
category to be V with a guideline range of 360 months to life imprisonment. At
sentencing the government moved for a downward departure for substantial
assistance under U.S.S.G § 5K.1.1. Lee moved for a downward departure under
U.S.S.G § 4A1.3, arguing that his category V classification overstated his criminal
history. The district court denied Lee's motion, granted the government's motion, and
sentenced Lee to 300 months, 60 months below the bottom of the guideline range.



      1
       The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.

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       Lee then realized that the PSR included an erroneous calculation of the amount
of drugs involved and that the base offense level should have been 36 with a total
offense level of 37 and a guideline range of 324-405 months. A resentencing hearing
was scheduled at which Lee requested that the district court provide a proportional
reduction by a § 5K.1.1 downward departure and impose a sentence of 264 months
or less. The government requested a sentence of 300 months. The district court again
provided a downward departure of 60 months, sentencing Lee to 264 months. Lee
appeals his sentence, arguing that the waiver in his plea agreement does not apply and
that the district court should have provided a greater downward departure.

       We will enforce an appeal waiver if the attempted appeal falls within the scope
of the waiver and the plea agreement and waiver were entered into knowingly and
voluntarily. United States v. Azure, 571 F.3d 769, 772 (8th Cir. 2009). This general
rule is subject to a narrow exception when enforcement of a waiver would result in
"a miscarriage of justice." United States v. Andis, 333 F.3d 886, 891 (8th Cir. 2003)
(en banc). We review de novo whether Lee waived the right to appeal his sentence.
United States v. Michelsen, 141 F.3d 867, 871 (8th Cir. 1998).

       Lee does not dispute that his agreement to plead guilty and waive appeal under
certain conditions was knowing and voluntary. He argues instead that the waiver was
structured to bar appeal if he was sentenced to less than the minimum guideline range
based on an incorrect calculation of the guideline range. Because the waiver was tied
to a 360 month minimum instead of a 324 month minimum, he contends that the
terms of the bargain changed and his waiver is no longer valid.

       This argument ignores several provisions in the agreement that show that Lee's
waiver of his appellate rights is not invalidated by the calculation of a new guideline
range. The agreement recognized there were disputes over the applicability of several
offense level enhancements and Lee's criminal history category, all of which would
have affected his guideline range. The provision addressing the expected sentence

                                          -3-
states that a range of 360 months to life imprisonment "is possible." The waiver was
thus not premised exclusively on a guideline minimum of 360 months. Moreover, the
agreement states that Lee was not entitled to withdraw from the agreement, including
the waiver provision, even if the district court found the guideline factors to be
different than those stipulated or anticipated in the agreement. Since Lee was
sentenced to less than 360 months his appeal is encompassed by the waiver and
enforcing the waiver would not cause a miscarriage of justice.

       Even if Lee's appeal were outside the scope of the waiver, we will not review
the extent of a downward departure absent allegations of an unconstitutional motive
on the part of the district court. United States v. Dalton, 478 F.3d 879, 881 (8th Cir.
2007) (extent of departure is within district court's discretion). By having requested
the specific sentence he received, Lee's argument that the sentence is substantively
unreasonable fails as well. United States v. Mickelson, 433 F.3d 1050, 1056 (8th Cir.
2006) (counsel's request for a particular sentence is an acknowledgment that such a
sentence is reasonable).

      Because Lee's waiver is enforceable, we dismiss the appeal.
                     ______________________________




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