                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-2178
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                    Marcus Floyd

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Western District of Arkansas - Texarkana
                                  ____________

                             Submitted: April 15, 2019
                               Filed: July 25, 2019
                                  ____________

Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.
                         ____________

LOKEN, Circuit Judge.

      Marcus Floyd pleaded guilty in March 2014 to one count of possession of
methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). As
relevant here, Paragraph 7 of the Plea Agreement provided that Floyd:

      knowingly and voluntarily agrees and understands the following
      appellate and post-conviction terms of this agreement:
             a. the defendant waives the right to directly appeal the
             conviction and sentence pursuant to 28 U.S.C. § 1291
             and/or 18 U.S.C. § 3742(a);

             b. the defendant reserves the right to appeal from a
             sentence which exceeds the statutory maximum;

             d. the defendant waives the right to collaterally attack the
             conviction and sentence pursuant to 28 U.S.C. § 2255,
             except for claims based on Ineffective assistance of counsel
             which challenge the validity of the guilty plea or this
             waiver.

At sentencing, the district court1 determined that Floyd’s advisory guidelines
sentencing range was 151 to 188 months in prison. Varying downwards, the court
imposed a 140-month sentence. Floyd did not appeal the conviction or sentence.

       In February 2015, Floyd filed a pro se motion to vacate the sentence under 28
U.S.C. § 2255, alleging, inter alia, ineffective assistance of counsel when his attorney
failed to appeal the original judgment as Floyd directed. Floyd’s trial counsel passed
away before a scheduled evidentiary hearing on this claim. In February 2018, the
district court concluded that an evidentiary hearing without counsel present “would
waste judicial resources,” granted the § 2255 motion on the ground that trial counsel
“failed to file a notice of appeal as directed,” and ordered that Floyd “be resentenced
so as to allow him the opportunity to file a timely notice of appeal.”

       At the May 2018 resentencing, the district court noted that, “when a defendant
has been unconstitutionally deprived of an appellate review due to defense counsel’s
failure to file an appeal, the prescribed remedy is for the court to vacate the


      1
       The Honorable Susan O. Hickey, United States District Judge for the Western
District of Arkansas.

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defendant’s sentence and then reimpose it, allowing him to appeal the new sentence.”
See United States v. Prado, 204 F.3d 843, 845 (8th Cir. 2000). Accordingly, the
district court declined to consider new objections to the initial Presentence
Investigation Report, denied Floyd’s request for de novo resentencing, and reimposed
the original 140-month sentence, concluding it was appropriate in light of the 18
U.S.C. § 3553(a) factors considered at the original sentencing hearing. Floyd
appeals, arguing the district court abused its discretion by denying his request for de
novo resentencing. We conclude that Floyd’s appeal waivers control this issue and
dismiss the appeal.

       “As a general rule, a defendant is allowed to waive appellate rights,” United
States v. Andis, 333 F.3d 886, 889 (8th Cir. 2003) (en banc), which includes the right
to waive “section 2255 collateral-attack rights.” DeRoo v. United States, 223 F.3d
919, 923 (8th Cir. 2000). When reviewing a claim of appeal waiver, “we must
confirm that the [issue raised on] appeal falls within the scope of the waiver and that
both the waiver and plea agreement were entered into knowingly and voluntarily.
Even when these conditions are met, however, we will not enforce a waiver where to
do so would result in a miscarriage of justice.” Andis, 333 F.3d at 889-90; see United
States v. Fonseca, 790 F.3d 852, 853-54 (8th Cir. 2015).

       In this case, Floyd waived the right to directly appeal but “reserve[d] the right
to appeal from a sentence which exceeds the statutory maximum,” and he waived the
right to collaterally attack the conviction and sentence “except for claims based on
Ineffective assistance of counsel which challenge the validity of the guilty plea or this
waiver.” Plea Agreement par. 7 (emphasis added). This limited ineffective assistance
exception reflected our decision in DeRoo and other cases:

             A decision to enter into a plea agreement cannot be knowing and
      voluntary when the plea agreement itself is the result of advice outside
      the range of competence demanded of attorneys in criminal cases. . . .


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      A defendant’s plea agreement waiver of the right to seek section 2255
      post-conviction relief does not waive defendant’s right to argue,
      pursuant to that section, that the decision to enter into the plea was not
      knowing and voluntary because it was the result of ineffective assistance
      of counsel.

223 F.3d at 923-24 (citations and quotation omitted), cited in Andis, 333 F.3d at 890.
Absent a broader exception, the merits of other ineffective assistance arguments were
within the scope of Floyd’s § 2255 waiver. See United States v. Jemison, 237 F.3d
911, 916 & n.8 (7th Cir. 2001).

       In the district court and on appeal, Floyd did not contend that his Plea
Agreement or the Paragraph 7 appeal waivers were not knowing and voluntary. Thus,
his claim that trial counsel provided ineffective assistance by failing to file a notice
of appeal fell squarely within the terms of his knowing and voluntary § 2255 appeal
waiver. There is no finding that “counsel’s deficient performance deprive[d Floyd]
of an appeal he otherwise would have taken.” Garza v. Idaho, 139 S. Ct. 738, 747
(2019) (quotation omitted). Any appeal from the district court’s failure to conduct
de novo resentencing is precluded by his § 2255 appeal waiver. And there can be no
claim that enforcing this waiver against the de novo resentencing claim will result in
a miscarriage of justice: the direct appeal that counsel failed to file would have been
squarely precluded by Floyd’s direct appeal waiver, which reserved only the right to
appeal from a sentence which exceeded the statutory maximum. For these reasons,
the Paragraph 7 appeal waivers foreclose this appeal.

       In responding to the government’s appeal waiver argument on appeal, Floyd
argued a different ineffective assistance theory -- “his attorney failed to object to
application of the [Guidelines] career-offender enhancement at sentencing.” But the
§ 2255 appeal waiver forecloses this argument as well. This claim does not allege
ineffective assistance that challenges “the validity of the guilty plea or this waiver.”
And a claim of ineffective assistance alleging that counsel failed to challenge a

                                          -4-
guidelines enhancement is foreclosed by Paragraph 7. See Andis, 333 F.3d at 892
(allegation that sentencing judge misapplied the Guidelines is subject to a valid
appeal waiver if the resulting sentence did not exceed the statutory maximum for the
offense of conviction).

      Accordingly, we dismiss the appeal. See Andis, 333 F.3d at 894.
                     ______________________________




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