                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-2754
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                             Michael Patrick Geraghty

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                   for the Northern District of Iowa - Ft. Dodge
                                  ____________

                             Submitted: April 18, 2014
                               Filed: July 24, 2014
                                  [Unpublished]
                                 ____________

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

PER CURIAM.

      Michael Patrick Geraghty pleaded guilty to two counts of distribution of five
grams or more of actual methamphetamine by a felon, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), and 851. As part of the plea agreement, Geraghty signed
a waiver of appellate rights. Nonetheless, he now appeals the district court's1
calculation of his offense level as well as its imposition of an upward variance at
sentencing. We dismiss Geraghty's appeal.

                                  I. Background
       In July 2012, Geraghty distributed approximately 14 grams of pure
methamphetamine on two different occasions to a confidential informant. Geraghty
distributed more methamphetamine in January 2013. Law enforcement officers
subsequently executed a search warrant at Geraghty's home where they uncovered
evidence of methamphetamine distribution. On January 31, 2013, law enforcement
arrested Geraghty. He was indicted on two counts of distribution of
methamphetamine by a felon, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B),
and 851. He pleaded guilty to both charges on March 15, 2013.

      As part of his plea agreement, Geraghty signed an appeal waiver that provided:

                              WAIVER OF APPEAL

             26. [Geraghty's signed initials] After conferring with defendant's
      attorney and after being advised of defendant's appeal rights, defendant
      knowingly and voluntarily waives defendant's right to appeal the
      conviction and the sentence imposed, or to request or receive any
      reduction in sentence by operation of 18 U.S.C. § 3582(c)(2). Defendant
      also waives the right to file post-conviction relief actions, including
      actions pursuant to 18 U.S.C. § 3582(c)(2), 28 U.S.C. § 2255, 28 U.S.C.
      § 2241, coram nobis, and motions to reconsider or reduce defendant's
      sentence. Defendant retains the right to appeal or contest defendant's
      sentence in the following limited circumstances: (1) if the sentence is
      not in accordance with this plea agreement; (2) if the sentence imposed
      exceeds the maximum statutory penalty; and (3) if the sentence is

      1
      The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

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      constitutionally defective. This waiver does not, however, prevent
      defendant from challenging the effectiveness of defendant's attorney
      after conviction and sentencing. Defendant does not have any
      complaints at this time about the effectiveness of defendant's attorney.
      The waivers set out above relate to any issues that now exist or that may
      arise in the future. Defendant agrees to these waivers in order to induce
      the government to accept the provisions and stipulations of this plea
      agreement, to avoid trial, and to have defendant's case finally concluded.
      Defendant understands that, at the conclusion of the sentencing hearing,
      the Court will note defendant's appeal rights are limited by this waiver.
      No assurances or promises have been made by any party as to what
      defendant's ultimate sentence will be.

Geraghty initialed this paragraph and all other paragraphs in the plea agreement. He
also acknowledged that he "read each of the provisions of this entire plea agreement
with the assistance of counsel and understands its provisions. Defendant has
discussed the case and defendant's constitutional and other rights with defendant's
attorney." He also initialed a paragraph that provided:

      Defendant acknowledges defendant is entering into this plea agreement
      and is pleading guilty freely and voluntarily because defendant is guilty
      and for no other reason. Defendant further acknowledges defendant is
      entering into this agreement without reliance upon any discussions
      between the government and defendant (other than those specifically
      described in this plea agreement), without promise of benefit of any kind
      (other than any matters contained in this plea agreement), and without
      threats, force, intimidation, or coercion of any kind. Defendant further
      acknowledges defendant's understanding of the nature of each offense
      to which defendant is pleading guilty, including the penalties provided
      by law.

      At the change-of-plea hearing, the magistrate judge explained to Geraghty that
he was giving up his right to appeal by signing the plea agreement, stating:



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      Now, generally both you and the government would have the right to
      appeal the sentence to the 8th Circuit Court of Appeals. In this case,
      however, pursuant to your plea agreement you are waiving your right to
      appeal except under very limited circumstances that are described in
      Paragraph 26 of your plea agreement, which is Exhibit 1. Do you
      understand that as part of your agreement you are waiving your right to
      appeal except on very limited circumstances?

Geraghty acknowledged that he understood. He also stated that he had reviewed the
agreement with his attorney, understood it, and had no questions about it. The
magistrate judge determined that the plea was entered into knowingly and voluntarily.
The magistrate judge entered the guilty plea, and the district court accepted it without
objection from either party.

       At sentencing, the district court agreed with the presentence report's
recommendation that Geraghty's base offense level was 26 plus a two-level
enhancement for obstruction of justice. This resulted in an adjusted offense level of
28. The district court refused to adjust downward for acceptance of responsibility
because Geraghty obstructed justice. Because he fell in a criminal history category
of III, Geraghty's Guidelines range was 97–121 months. However, the statutory
minimum for the offenses was 120 months, so the Guidelines range became 120–121
months. See U.S.S.G. § 5G1.1.

      The district court then granted the government's motion for an upward variance
based on Geraghty's attempts to hire someone to murder the confidential informant
involved in his case. The district court elaborated:

            I also would add that the guidelines do not fully capture the
      seriousness of his obstructive conduct. The obstruction of justice
      adjustment of two levels covers everything from destroying evidence or
      making verbal threats against someone to lying to a judge, attempting to
      escape, providing materially false statements to law enforcement, but

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      this is the zenith when you try to put a hit out on someone who is the
      confidential informant and really the key to the Government's
      prosecution. So it's a much more serious obstruction than most of the
      obstructions that I score under the advisory guidelines.

The district court also noted that Geraghty's criminal history score underrepresented
his criminal behavior because he had several unscored, serious offenses and he
frequently assaulted women. The district court explained that "in spite of being scored
for obstruction, really it didn't change the guidelines at all and so there has been no
incremental punishment for obstructive conduct" because of the mandatory minimum
sentence. The district court then sentenced Geraghty to a total of 180 months'
imprisonment—approximately five years above the Guidelines range. The district
court also sentenced him to eight years of supervised release.

                                     II. Discussion
       On appeal, Geraghty challenges the district court's imposition of the two-level
obstruction-of-justice enhancement, denial of a three-level reduction for acceptance
of responsibility, and imposition of an upward variance. Geraghty also argues that
"the [g]overnment's willful failure to disclose any information [about its investigation
into the murder-for-hire plot] made it impossible for [Geraghty] to knowingly consent
to the waiver." He argues that enforcement of the waiver would result in a miscarriage
of justice because he did not know of the government's allegations until after pleading
guilty and that these allegations substantially impacted his sentence. The government
responds by arguing that Geraghty reserved his right to appeal in only limited
circumstances, which were not present here. Furthermore, the government had no
obligation to disclose its investigation of a subsequent, ongoing crime.

      "We review de novo the issue of whether a defendant has knowingly and
voluntarily waived rights in a plea agreement. We review questions regarding the



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interpretation and enforcement of plea agreements de novo." United States v.
Guzman, 707 F.3d 938, 941 (8th Cir. 2013) (quotations and citations omitted).

       Generally, defendants may waive their appellate rights through plea
agreements. United States v. Andis, 333 F.3d 886, 889 (8th Cir. 2003) (en banc).
When reviewing an appellate waiver, we must determine "that the issue falls within
the scope of the waiver and that both the plea agreement and the waiver were entered
into knowingly and voluntarily." United States v. McIntosh, 492 F.3d 956, 959 (8th
Cir. 2007) (citation omitted). If so, then we must consider whether enforcement of the
waiver will result in a miscarriage of justice. Id. Consequently, the government
shoulders the burden to "establish: (1) that the appeal is clearly and unambiguously
within the scope of the waiver, (2) that the defendant entered into the waiver
knowingly and voluntarily, and (3) that dismissing the appeal based on the
defendant's waiver would not result in a miscarriage of justice." Id. (quotation,
alteration, and citation omitted).

       As for whether the waiver was knowing and voluntary, we consider whether
the district court questioned the defendant about the defendant's decision to waive
appellate rights. United States v. Griffin, 668 F.3d 987, 990 (8th Cir. 2012); 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."). Furthermore,

      [w]e have previously held that a defendant's appeal waiver in a plea
      agreement was "knowing and voluntary" where the "plea agreement
      state[d] that [the] guilty plea was 'voluntary' and not coerced," the plea
      agreement stated that the defendant "discussed the case and her rights
      with her attorney and that she was advised of the nature and range of her
      possible sentence," and "[t]he district court confirmed that [the



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      defendant] had reviewed the provisions of the plea agreement with her
      attorney." United States v. Cervantes, 420 F.3d 792, 794 (8th Cir. 2005).

Guzman, 707 F.3d at 941 (second, third, fourth, and fifth alterations in original).

       We have also recognized that the miscarriage-of-justice exception is narrow.
Griffin, 668 F.3d at 990. Although this court has not enumerated an exhaustive list
of circumstances in which this exception may apply, it does apply where a defendant
appeals an illegal sentence, a sentence that violates the plea agreement, or a claim that
raises ineffective assistance of counsel. Id. As for illegal sentences, we have
emphasized that a sentence is not illegal where the district court sentenced the
defendant below the statutory maximum. See, e.g., Guzman, 707 F.3d at 942; Griffin,
668 F.3d at 990.

      Finally, we have upheld the use of an appellate waiver that reads almost
verbatim to the waiver in this case. See United States v. Dixon, 511 F. App'x 592, 593
(8th Cir. 2013) (per curiam). We have also acknowledged that a defendant may waive
improper application and calculation of the Guidelines range, United States v.
Mousseau, 517 F.3d 1044, 1047–48 (8th Cir. 2008), and challenges to the substantive
reasonableness of a sentence, United States v. Boroughf, 649 F.3d 887, 890 (8th Cir.
2011).

       The waiver here provides that Geraghty "retains the right to appeal or contest
[his] sentence in the following limited circumstances: (1) if the sentence is not in
accordance with this plea agreement; (2) if the sentence imposed exceeds the
maximum statutory penalty; and (3) if the sentence is constitutionally defective." The
waiver also allows Geraghty to challenge the effectiveness of his counsel.
Furthermore, "[t]he waivers . . . relate to any issues that now exist or that may arise
in the future."



                                          -7-
       Geraghty's appeal does not fall into one of these categories; thus, he has waived
these challenges on appeal. See Dixon, 511 F. App'x at 593. The court did not
sentence Geraghty above the statutory maximum. See Guzman, 707 F.3d at 942;
Griffin, 668 F.3d at 990. Geraghty does not assert that the government violated the
terms of the plea agreement. He does not assert that the sentence is constitutionally
defective,2 for he avers only that the district court miscalculated his offense level and
imposed an unreasonable sentence. The appellate waiver unambiguously precludes
these challenges.

       Geraghty's primary argument is that he did not knowingly waive his appellate
rights where the government withheld information that it was investigating him for
attempting to murder the confidential informant. Furthermore, he alleges that this
withholding of information constitutes a miscarriage of justice if we enforce the
waiver. We reject this argument. First, the government had no legal obligation to
disclose that it was investigating Geraghty for a separate crime. Second, Geraghty
already knew about the circumstances involving his attempted-murder-for-hire
because he was the party that committed the offense. As the government notes, "[h]is
only real complaint is he did not know that the government knew about his conduct."
Third, the government's investigation into the crime lasted from before Geraghty
signed the plea agreement until after the plea hearing. If the government disclosed its


      2
        In his opening brief, Geraghty mentions a case with constitutional implications
in support of his argument that the district court erred in varying upward by five
years. See Alleyne v. United States, 133 S. Ct. 2151 (2013). Although we ultimately
conclude that Geraghty did not advance a constitutional argument, and thus his
waiver precludes his challenge to the upward variance, we nonetheless note that
Alleyne does not apply here. We have already determined that a criminal defendant
is "not sentenced in violation of Alleyne because the District Court made no factual
findings that raised the applicable statutory minimum sentence." United States v.
Villereal-Gonzalez, No. 13-3741, __ F. App'x__, 2014 WL 2457698, at *1 (8th Cir.
June 3, 2014) (per curiam). Geraghty admits in his opening brief that "the obstruction
enhancement did not alter the mandatory minimum or maximum of the charge."

                                          -8-
investigation before the guilty plea, "the investigation would have been incomplete
and the disclosure would have squelched any further investigation into a new crime."

       Most importantly, Geraghty acknowledged in the plea agreement and at the
plea hearing that he knowingly and voluntarily waived these appellate rights. The
magistrate judge extensively explained Geraghty's appellate rights; Geraghty
acknowledged that he understood these rights and had read the plea agreement with
his attorney. Geraghty then entered the plea with no objections. We have upheld
appellate waivers based on similar facts. See Guzman, 707 F.3d at 941.

      Finally, the facts here do not implicate the narrow miscarriage-of-justice
exception to appellate waivers. As such, Geraghty has waived his appellate right to
challenge his Guidelines calculation and below-the-maximum sentence.

                               III. Conclusion
      We dismiss Geraghty's appeal.
                    ______________________________




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