                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 02-4015
                                     ___________

United States of America,            *
                                     *
          Plaintiff - Appellee,      *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * Eastern District of Missouri.
Myron K. Woods,                      *
                                     *
          Defendant - Appellant.     *
                                ___________

                              Submitted: September 9, 2003
                                 Filed: October 14, 2003
                                  ___________

Before SMITH, LAY, and BRIGHT, Circuit Judges.
                            ___________

BRIGHT, Circuit Judge.

       The government charged Myron K. Woods with distribution of five grams or
more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Woods
pleaded guilty pursuant to a plea agreement in which he waived his right to appeal his
sentence. The district court sentenced Woods to 100 months' (eight years and four
months) imprisonment. Despite the waiver, Woods filed this appeal claiming the
district court improperly enhanced his sentence under the guidelines for obstruction
of justice. U.S.S.G. § 3C1.1. Woods argues that enforcing the waiver would
constitute a miscarriage of justice because the underlying facts of his case do not
equal the standard for finding an obstruction of justice. In light of this court's recent
en banc ruling in United States v. Andis, 333 F.3d 886 (8th Cir. 2003), we dismiss
Woods' appeal.1

I.    BACKGROUND

       On March 6, 1998, Woods sold crack cocaine to an undercover police officer
in exchange for what appeared to be official law enforcement information regarding
Woods' drug trafficking activities. Woods and the government entered into a plea
agreement stipulating to the relevant underlying facts, and waiving the right to
appeal. In addition, the plea agreement noted that the government sought an
obstruction of justice enhancement based on the exchange of drugs for a police report.
Woods objected to the enhancement, and the parties noted the objection in the plea
agreement. The plea agreement stated that the district court would determine the
applicability of the obstruction of justice enhancement. Regarding the obstruction of
justice determination the parties agreed:

      Should the defendant's final offense level be set by the Court at a level
      25, the defendant should receive a sentence of 100 months. Should the
      Court determine that the final offense level is a 23, then the parties have
      no agreement as to a recommended sentence, and the defendant may be
      sentenced to any term within the applicable guideline range.

Appellant's App. at 11. In exchange for Woods pleading guilty, the government
agreed to recommend a three-level decrease in Woods' offense level for acceptance
of responsibility. The government agreed not to pursue additional federal drug
charges against Woods for his prior alleged violations.




      1
        This court requested and the parties supplied supplemental briefing prior to
oral argument on the applicability of Andis to Woods' appeal.

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      After hearing argument for both sides on the obstruction of justice
enhancement, the district court determined Woods' actions qualified for the
enhancement. The district court then increased Woods' offense level from a level
twenty-three to a level twenty-five. The district court sentenced Woods to the agreed
on 100 months' imprisonment, to be served consecutively with a fifty-eight-month
sentence for a felon in possession of a firearm conviction in 1998. Woods filed a pro
se appeal, and the court appointed counsel. On appeal, Woods argues that,
notwithstanding his waiver of appellate rights, he retained the right to appeal because
the evidence does not support the obstruction of justice enhancement. The
government argues that Woods' appeal should be dismissed because of the valid
waiver.

II.   DISCUSSION

       We recently explained in Andis that valid waivers of appellate rights are
generally enforceable. Andis, 333 F.3d at 889. Andis provides a procedure for
determining whether or not a waiver will be enforced to prohibit an appeal. When
reviewing a purported waiver, we must confirm that the appeal falls within the scope
of the waiver and that the defendant entered into both the waiver and plea agreement
knowingly and voluntarily. Even when those conditions are met, we will not enforce
the waiver where to do so would result in a miscarriage of justice. Id. at 890.

      In this case, Woods' waiver in his plea agreement provided:

      The defendant has been fully apprised of his right to appeal by his
      attorney and fully understands that he has a right to appeal his sentence
      under 18 U.S.C. § 3742. In the event the District Court follows the
      recommendations of the parties as set forth under paragraph one herein,
      both the defendant and the Government hereby mutually agree to waive
      all rights to appeal whatever sentence is imposed, including any issues
      that relate to the establishment of the Guideline range reserving only the

                                         -3-
      right to appeal from an upward or downward departure from the
      Guideline range that is established at sentencing, which departure was
      not agreed to as part of this agreement. The District Court's decision as
      to these issues shall not be subject to appeal.

Appellant's App. at 11.

      Because Woods does not suggest that the present appeal falls outside the scope
of the waiver, the initial consideration of the Andis analysis supports dismissing
Woods' appeal. Woods also does not contest that he entered into the waiver
knowingly and voluntarily. Id. at 890-91.

       Andis does not provide a precise definition of a miscarriage of justice.
However, the Andis court did indicate a non-exhaustive list of three circumstances
where a miscarriage of justice could exist. Andis, 333 F.3d at 891. First, a
miscarriage of justice may exist when the district court bases a sentence on
constitutionally impermissible factors. Id. Second, claims asserting ineffective
assistance of counsel may warrant a determination of a miscarriage of justice. Id.
Finally, an illegal sentence may constitute a miscarriage of justice.

       In light of Andis, Woods contends that a miscarriage of justice occurs when a
court determines an offense happened without facts to support the finding. Woods
argues that the facts in his case do not satisfy a finding of obstruction of justice.
Woods challenges the constitutionality of finding an enhancement where the facts and
the plea agreement do not meet the elements. We need not address this contention
to decide Woods' appeal. Woods knew, and the plea agreement reflected, that the
district court might adopt the government's recommendation for an obstruction of
justice enhancement. Woods agreed to have the district court make the final
determination. Further, Woods knowingly and explicitly waived the right to appeal
the district court's determination as to the obstruction of justice enhancement. Woods
understood and agreed to the procedure that the district court followed. Because

                                         -4-
Woods knew and agreed to the procedure followed by the district court, no
miscarriage of justice exists here.

III.   CONCLUSION

       Accordingly, we dismiss Woods' appeal.
                      ______________________________




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