                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-3271
                                    ___________

United States of America,
                                      *
            Plaintiff-Appellee,       *
                                      * Appeal from the United States
     v.                               * District Court for the Eastern
                                      * District of Missouri.
Michael Lee Luleff,                   *
                                      *
            Defendant-Appellant.      *
                                 ___________

                              Submitted: June 12, 2009
                                 Filed: July 27, 2009
                                  ___________

Before BYE, HANSEN, and BENTON, Circuit Judges.
                           ___________

BYE, Circuit Judge.

       In this appeal Michael Luleff challenges his sentence, which was imposed after
he pleaded guilty to conspiring to possess methamphetamine with the intent to
distribute, 21 U.S.C. §§ 841(a)(1) and 846. Luleff argues the district court1 committed
substantive error in imposing his sentence, and the government moves to dismiss
Luleff’s appeal in accordance with a waiver provision in his plea agreement. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. 3742(a). We deny the



      1
        The Honorable Rodney W. Sippel, United States District Court for the Eastern
District of Missouri.
government’s motion to dismiss Luleff’s appeal, and because the district court did not
abuse its discretion at sentencing, we affirm on the merits.

                                           I

       In January 2008, a grand jury returned a one-count indictment, which charged
Luleff, along with three others, with conspiring to possess methamphetamine with the
intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Additionally, the
indictment alleges the quantity of the methamphetamine involved in the offense was
in excess of 500 grams, thereby making the offense punishable under 21 U.S.C.
§ 841(b)(1)(A)(viii). In June 2008, Luleff pleaded guilty as charged.

       At sentencing, the district court found Luleff to be a career offender and
established his advisory Sentencing Guidelines range to be 262 to 327 months’
imprisonment based on a total offense level of 34 and criminal-history category VI.
The district court then imposed a 262-month sentence, which was at the bottom of the
Guidelines range.

      This timely appeal followed. Additionally, the government moved to dismiss
Luleff’s appeal as violating the waiver provision of his plea agreement. The motion
has been referred to the panel for decision.

                                          II

      As a threshold matter, we must resolve the government’s pending motion to
dismiss this appeal because of a waiver provision in Luleff’s plea agreement. Luleff
responds that the appeal is proper because the issues raised are outside the scope of
the waiver given the district court’s failure to apply the recommendations in the plea
agreement.



                                         -2-
       Generally, a defendant may waive his appellate rights. See United States v.
Andis, 333 F.3d 886, 889 (8th Cir. 2003) (en banc). When we review such a waiver,
we must determine that the issue raised on appeal falls within the scope of the waiver
and the defendant knowingly and voluntarily entered into both the plea agreement and
waiver. See United States v. Woods, 346 F.3d 815, 817 (8th Cir. 2003). And even
when those conditions are satisfied, “we will not enforce the waiver where to do so
would result in a miscarriage of justice.” Id. The government bears the burden to
show that each of these conditions is met. See United States v. McIntosh, 492 F.3d
956, 959 (8th Cir. 2007) (citing United States v. Aronja-Inda, 422 F.3d 734, 737 (8th
Cir. 2005)).

      The relevant portion of Luleff’s plea agreement provides:

             Waiver of Post-Conviction Rights:

             (1) Appeal: The defendant has been fully apprised by
             defense counsel of the defendant’s rights concerning appeal
             and fully understands the right to appeal the sentence under
             Title 18, United States Code, Section 3742.

             ...

                    (b) Sentencing Issues: In the event the Court accepts
             the plea, and, in sentencing the defendant, 1) applies the
             recommendations agreed to by the parties herein, and 2)
             after determining a Sentencing Guideline range, sentences
             the defendant within that range, then, as part of this
             agreement, both the defendant and the government hereby
             waive all rights to appeal all sentencing issues, with the
             exception that the defendant retains his right to appeal the
             Criminal History Category and Career Offender status.

(Emphasis added.) In other words, Luleff agreed to waive his appellate rights only if
the district court (1) applied the recommendations set forth in the plea agreement and

                                         -3-
(2) sentenced him within the Guidelines range. The parties recommended Luleff’s
base offense level to be 32 and his total offense level to be 29.

      At sentencing, the district court did not follow this recommendation, concluding
that Luleff had “a total offense level of 34 and a criminal history category of six.”
Accordingly, an essential condition of the waiver provision was not met, and the
government cannot meet its burden to show that the issues Luleff raises on appeal fall
within the scope of the waiver provision—regardless of the issue. We therefore deny
the government’s motion to dismiss this appeal.

                                           III

       Turning to the merits of Luleff’s appeal, it is not entirely clear whether he
asserts that the district court committed procedural or substantive error at sentencing.
For example, Luleff cites law to the effect that the district court must “consider each
of the sentencing factors set forth in [18 U.S.C.] § 3553(a) before making its final
determination as to the sentence to be imposed.” This type of argument is typically
raised in a procedural-error appeal. See Gall v. United States, 552 U.S. --, 128 S. Ct.
586, 597 (2007) (labeling a district court’s failure to consider the § 3553(a) factors as
procedural error). But a few sentences later, Luleff makes the following statement:
“Although [Luleff] does not argue herein that his advisory guidelines range was
improperly calculated, he asserts that the sentence imposed was unreasonable in light
of the statutory sentencing factors set forth in § 3553(a).” Luleff then dedicates the
remainder of his brief to arguing that (1) the sentence was unreasonably long in light
of the § 3553(a) factors; (2) the district court committed a “clear error of judgment”;
and (3) the district court violated the parsimony doctrine. These types of arguments
are typically associated with substantive error. See Gall, 128 S. Ct. at 597; United
States v. Kowal, 527 F.3d 741, 749 (8th Cir.), cert. denied, 129 S. Ct. 612 (2008).
Fundamentally, Luleff’s argument challenges the reasonableness of the sentence in
light of § 3553(a). Therefore, we construe Luleff’s appeal to assert substantive error.


                                          -4-
       We review a challenge to the substantive reasonableness of a sentence for an
abuse of discretion. See United States v. Phelps, 536 F.3d 862, 869 (8th Cir. 2008),
cert. denied, 555 U.S. ---, 129 S. Ct. 1390 (2009). A sentencing court abuses its
discretion when it “fails to consider a relevant factor that should have received
significant weight, gives significant weight to an improper or irrelevant factor, or
considers only the appropriate factors but commits a clear error of judgment in
weighing those factors.” Kowal, 527 F.3d at 749 (internal quotation marks omitted).
Additionally, we accord a sentence within the applicable guidelines range a
“‘presumption of substantive reasonableness on appeal.’” Phelps, 536 F.3d at 869
(quoting United States v. Robinson, 516 F.3d 716, 717 (8th Cir. 2008)). Luleff bears
the burden of proving that his sentence is unreasonable. See United States v. Betcher,
534 F.3d 820, 827 (8th Cir. 2008). And even though Luleff failed to invoke
substantive error as a basis to object to the length of his sentence at sentencing, “a
defendant does not forfeit an attack on the substantive reasonableness of a sentence
by failing to object in the district court.” Phelps, 536 F.3d at 869.

      Here, the record shows that the district court did not abuse its discretion by
sentencing Luleff to 262 months’ imprisonment. As an initial matter, Luleff’s
sentence is within the Guidelines range, and we therefore accord it a presumption of
reasonableness. See Phelps, 536 F.3d at 869; see also United States v. Turbides-
Leonardo, 468 F.3d 34, 41 (1st Cir. 2006) (“It will be the rare case in which a within-
the-range sentence can be found to transgress the parsimony principle.”).

       Moreover, the sentencing transcript shows that the district court did not impose
an unreasonably lengthy sentence. The district court emphasized that Luleff had
committed a number of serious violent felonies in the past, had been incarcerated
almost continuously from the mid-1980s until 2004, and found himself “with almost
a kilo of methamphetamine within less than two years of his release from the custody
of the Missouri Department of Corrections.” The district court also explained that the
sentence was required to “protect[] the public, provid[e] deterrence, and . . . prevent


                                         -5-
further crimes.” The sentence was also sufficient but not greater than necessary, in
the district court’s view, because of the seriousness of conspiracy to distribute almost
one kilogram of methamphetamine: “I won’t even go in the societal harm that
methamphetamine causes in our community, the lives destroyed; the carnage that
results all seems kind of distant . . . [but is] very real in the everyday lives of people
. . . in Missouri, especially rural Missouri.”

       Regardless of whether “a sentence significantly lower than that imposed by the
[district] court would have fully addressed each of the objectives cited [by it] at the
time of sentencing,” as Luleff argues, “[t]he fact that the appellate court might
reasonably have concluded that a different sentence was appropriate is insufficient to
justify reversal of the district court.” Gall, 128 S. Ct. at 597; United States v. Austad,
519 F.3d 431, 436 (8th Cir. 2008). Accordingly, we conclude that the district court
did not commit substantive error by sentencing Luleff to a term of imprisonment that
is within the applicable Guidelines range.2

                                           IV

      For the foregoing reasons, we deny the government’s motion to dismiss Luleff’s
appeal and affirm.
                       ______________________________




      2
        To the extent Luleff argues that his sentence creates unwarranted sentencing
disparities, such an argument fails for many of the same reasons as his other
arguments. The district court reasonably concluded that Luleff’s individualized
circumstances—including participation in offense conduct not undertaken by other
members of the conspiracy—justified a heavier sentence than those meted out to the
other conspirators.

                                           -6-
