                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 10-3633
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
Lamont E. President,                    *
                                        *     [UNPUBLISHED]
            Appellant.                  *
                                   ___________

                             Submitted: November 18, 2011
                                 Filed: February 10, 2012
                                 ___________

Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

      Lamont President pleaded guilty to carrying and using a firearm in relation to
a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A). On appeal,
President argues that the district court1 erred in imposing a 120-month sentence
instead of the 60-month sentence stated in his plea agreement. We affirm.




      1
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
                                    I. Background

       On March 3, 2009, police officers arrested President in Kansas City, Missouri,
at a barbershop under a warrant for allegedly assaulting his pregnant wife. During the
arrest, officers found a Glock, Model 27, .40-caliber pistol in President's possession.
Ultimately, President admitted that he possessed the firearm in connection with
cocaine distribution in exchange for a plea deal.

       As a part of his plea agreement with the government, President pleaded guilty
to carrying and using a firearm in relation to a drug trafficking offense. The plea
agreement was subject to the district court's approval and contained an appeal waiver.
This waiver stated in relevant part:

      The defendant expressly waives his right to appeal his sentence, directly
      or collaterally, on any ground except claims of (1) ineffective assistance
      of counsel; (2) prosecutorial misconduct; or (3) an illegal sentence. An
      "illegal sentence" includes a sentence imposed in excess of the statutory
      maximum, but does not include less serious sentencing errors, such as
      a misapplication of the Sentencing Guidelines, an abuse of discretion,
      or the imposition of an unreasonable sentence.

       At the change-of-plea hearing, the district court noted that the statutory
imprisonment range was between 60 months' and life imprisonment. After discussing
this range with counsel for both the government and President, the district court asked
President if he understood that the court could sentence him within this range despite
the 60-month sentence stated in the plea agreement. President acknowledged this fact,
but did not seek to withdraw his plea. After reviewing the factors outlined in 18
U.S.C. § 3553, the district court found the plea agreement's 60-month sentence




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inadequate and imposed an upward variance2 of 60 months—making President's total
sentence 120 months. In imposing the sentence, the district court stated:

            Taking into consideration all of the factors set forth under 18
      U.S.C., Section 3553, including the nature and circumstances of this
      offense, the defendant's history and characteristics, the need for the
      sentence imposed to reflect the seriousness of the offense, promote
      respect for the law, and provide just punishment, as well as afford
      adequate deterrence to criminal conduct and to protect the public from
      future crimes of the defendant, which given the defendant's history
      seems to be a significant factor for consideration, I believe that a
      sentence of 120 months in the custody of the Bureau of Prisons is a
      reasonable and appropriate sentence and I'm going to impose that
      sentence in this case.3

                                    II. Discussion
       On appeal, President argues that the district court abused its discretion by
departing upward by 60 months and erred by not providing notice of an intent to
depart upward under the Guidelines pursuant to Rule 32(h). The government responds
that President waived his right to appeal the district court's upward variance in his


      2
        Although President alleges that the district court departed upward, the district
court actually imposed an upward variance. "Departure is a term of art under the
Guidelines and refers only to non-Guidelines sentences imposed under the framework
set out in the Guidelines. A variance, on the other hand, is a non-Guidelines
sentence[ ] based on the factors enumerated in 18 U.S.C. § 3553(a)." United States
v. Mireles, 617 F.3d 1009, 1012 n.2 (8th Cir. 2010) (alteration in original) (citations
and quotations omitted). Here, the district court expressly relied on 18 U.S.C. § 3553
factors in imposing a variance rather than a departure from the Guidelines.
      3
       President's history included charges for assault for punching a woman, assault
on a law enforcement officer, indecent conduct, marijuana possession, and violations
of various city ordinances. In addition, President had a lengthy criminal record as a
juvenile.

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plea agreement, and that because the district court imposed an upward variance,
rather than a departure, Rule 32(h) did not require the district court to provide notice.

       A. Whether President Waived His Right To Challenge the Substantive
                          Reasonableness of His Sentence
       "Whether a valid waiver of appellate rights occurred is a question of law that
we will review de novo." United States v. Sisco, 576 F.3d 791, 795 (8th Cir. 2009).
"A plea agreement is essentially a contract between the government and the
defendant." Id. "A defendant may waive his appellate rights pursuant to that
agreement." Id. "[T]his court will enforce an appeal waiver if: (1) the record indicates
that the defendant entered into the agreement and the waiver knowingly and
voluntarily; (2) the appeal falls within the scope of the waiver; and (3) enforcing the
waiver would not result in a miscarriage of justice." United States v. Birbragher, 603
F.3d 478, 491 (8th Cir. 2010). "The burden of proof is on the government to prove
that a plea agreement clearly and unambiguously waives a defendant's right to
appeal." Id. at 491 (quotation and citation omitted). "Any ambiguities in the
agreement are construed against the government." Id. (quotation and citation
omitted).

       On appeal, President seeks the benefits of the plea agreement's low-end
Guidelines sentence, but desires to avoid the detriment of the agreement's
consequential appeal waiver. At the plea colloquy, the district court asked President
if he understood that he was pleading guilty to the charges alleged by the government
and that the court, not bound by the plea agreement, could sentence him to more than
60-months' imprisonment. President responded affirmatively. Under these facts, we
find that President knowingly and voluntarily entered into the plea agreement.

      Next, we review whether this appeal falls within the scope of the plea
agreement's waiver provision. That provision states in relevant part:



                                          -4-
       The defendant expressly waives his right to appeal his sentence, directly
       or collaterally, on any ground except claims of (1) ineffective assistance
       of counsel; (2) prosecutorial misconduct; or (3) an illegal sentence. An
       "illegal sentence" includes a sentence imposed in excess of the statutory
       maximum, but does not include less serious sentencing errors, such as
       a misapplication of the Sentencing Guidelines, an abuse of discretion,
       or the imposition of an unreasonable sentence.

President does not allege ineffective assistance of counsel or prosecutorial
misconduct. Consequently, under the terms of his plea agreement to avoid the appeal
waiver, President must show that his sentence is illegal.

       Because President only alleges that the district court abused its discretion—
resulting in an unreasonable sentence—President's appeal falls within the plain
language of his plea agreement, which states at relevant part: "An 'illegal
sentence' . . . does not include less serious errors, such as . . . an abuse of discretion,
or the imposition of an unreasonable sentence."

       Finally, we review whether enforcing President's appeal waiver results in a
miscarriage of justice. "[T]he 'miscarriage of justice' exception is a narrow one that
may arise in only limited contexts . . . . But '[a]ny sentence imposed within the
statutory range is not subject to appeal.'" Sisco, 576 F.3d at 796 (second alteration in
original) (quotation and citations omitted)).

       Here, President's sentence undisputedly falls within the 60 months to life
imprisonment statutory range. We conclude that enforcing the appeal waiver will not
result in a miscarriage of justice.

  B. Whether the District Court Failed to Provide Notice Pursuant to Rule 32(h)
       President also argues that the district court erred by not providing notice of an
intent to depart upward as required by Rule 32(h). But as noted in footnote two, the

                                           -5-
district court imposed an upward variance rather than a departure. Rule 32(h) does not
require that a district court give notice of an upward variance. United States v. Foy,
617 F.3d 1029, 1035 (8th Cir. 2010) ("As the district court correctly noted, however,
it was not required to provide advance notice of its intent to vary upwardly.").
"Federal Rule of Criminal Procedure 32(h) 'provides that under certain circumstances
the district court must give notice to the parties that it is contemplating a departure
from the guidelines range. However, notice pursuant to Rule 32(h) is not required
when the adjustment to the sentence is effected by a variance, rather than by a
departure.'" Id. (quoting Fed. R. Crim. P. 32(h)). Because the district court imposed
an upward variance, Rule 32(h) did not require that it give President notice.

       In sum, President knowingly and voluntarily entered into a plea agreement with
an appeal waiver. The challenge to the substantive reasonableness of his sentence on
appeal falls within the scope of that waiver and enforcing that waiver will not result
in a miscarriage of justice. We hold that President's plea agreement and waiver are
valid and thus preclude review on the merits of his challenge to the substantive
reasonableness of his sentence. We further hold that Rule 32(h) did not require the
district court to give President notice of an intent to impose an upward variance.

                                  III. Conclusion
     Accordingly, we affirm the judgment of the district court. Appellee's pending
motion to dismiss the appeal is denied as moot.
                       ______________________________




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