                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1343
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        *    Appeal from the United States
      v.                                *    District Court for the
                                        *    Eastern District of Missouri.
Carlos Benitez-Diaz,                    *          [PUBLISHED]
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: September 9, 2002

                                  Filed: July 31, 2003
                                   ___________

Before WOLLMAN, HEANEY, and BYE, Circuit Judges.
                         ___________

PER CURIAM.

       The government charged Carlos Benitez-Diaz, an alien, with illegal reentry
after deportation subsequent to an aggravated felony conviction. Benitez-Diaz
pleaded guilty pursuant to a plea agreement in which he waived his right to appeal his
sentence. Despite the waiver, Benitez-Diaz filed this appeal claiming the district
court erred in assessing a 16-level adjustment to his sentence pursuant to United
States Sentencing Guideline § 2L1.2. For the reasons explained below, we enforce
the waiver and dismiss the appeal.
                                           I

      In November 1997, Benitez-Diaz pleaded guilty to the California felony drug
offense “possession for sale of heroin.” The abstract of judgment emphasized the
commercial character of this offense, describing it as “contrl subst for sale.” Benitez-
Diaz served the majority of a two-year sentence and was then deported to Mexico.

      Benitez-Diaz returned to the United States without consent of the Attorney
General. In February 2001, police apprehended him in St. Louis, Missouri and
charged him with one count of illegally reentering the country pursuant to 8 U.S.C.
§§ 1326(a) & (b)(2). He pleaded guilty in October 2001 and agreed to waive his right
to appeal. Specifically, both the government and Benitez-Diaz agreed to:

      waive all rights to appeal all non-jurisdictional issues including, but not
      limited to . . . [the] sentence [that] is imposed, including any issues that
      relate to the establishment of the Offense Level or the Criminal History
      Category which are used to produce the Guideline range, reserving only
      the right to appeal from an upward or downward departure from the
      Guideline range established by the Court at sentencing that is made
      without the consent of the parties.

       The district court calculated Benitez-Diaz’s sentence using U.S.S.G. § 2L1.2,
which establishes a base offense level of 8 and provides for an increase of 16 levels
if the defendant was previously deported after committing an “aggravated felony.”
The district court noted Benitez-Diaz had agreed to the 16-level increase in his plea
agreement because his heroin conviction in California was an “aggravated felony.”
After subtracting three levels for acceptance of responsibility, the district court
sentenced Benitez-Diaz to 46 months in prison, the lowest point of the Guideline
range.




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       At the time of sentencing, however, it escaped the notice of all involved that
U.S.S.G. § 2L1.2 was amended between the time Benitez-Diaz pleaded guilty and the
time he was sentenced. United States v. Zimmer, 299 F.3d 710, 717 (8th Cir. 2002)
("As a general rule, the sentencing court should apply the Sentencing Guidelines in
effect at the time of sentencing unless doing so is violative of the ex post facto
clause.") (citation omitted). During that period, the Sentencing Commission had
created several gradations below the 16-level increase Benitez-Diaz received. Under
the revised Guidelines, some reentering aliens now receive 4, 8, or 12-level increases,
rather than 16-level increases. But the new Guideline continues to impose a 16-level
increase for aliens whose prior drug trafficking convictions resulted in a sentence of
13 or more months in prison. U.S.S.G. § 2L1.2(b)(1)(A)(i).

       Following the imposition of sentence, Benitez-Diaz filed this appeal. Benitez-
Diaz argues the amendment to the Guidelines would have reduced his sentence. Prior
to briefing, the government moved to dismiss the appeal because Benitez-Diaz had
waived his appellate rights in the plea agreement. The motion was taken with the
appeal.

                                          II

       We must first decide whether Benitez-Diaz should be permitted to proceed with
this appeal. The burden of proof is on the government to show the plea agreement
waives the defendant's right to appeal. Margalli-Olvera v. I.N.S., 43 F.3d 345, 353
(8th Cir. 1994).

        Benitez-Diaz concedes he entered into the waiver knowingly and voluntarily.
In it, he agreed not to challenge the sentence imposed by the district court unless the
court departed upward. The district court did not depart upward; however, Benitez-
Diaz argues he may appeal despite the waiver. Citing United States v. Andis, 277
F.3d 984, 986 (8th Cir. 2002), Benitez-Diaz argues his sentence was “illegal,” and so

                                         -3-
his appeal waiver should not be enforced. That decision lent some support to this
argument, but it was vacated and the cause reheard en banc on September 11, 2002.
The full court reviewed the enforceability of appeal waivers and said:

      We wish to make clear that the illegal sentence exception to the general
      enforceability of an appeal waiver is an extremely narrow exception.
      Any sentence imposed within the statutory range is not subject to
      appeal. Specifically, an allegation that the sentencing judge misapplied
      the Sentencing Guidelines or abused his or her discretion is not subject
      to appeal in the face of a valid appeal waiver.

United States v. Andis, 333 F.3d 886, 891 (8th Cir. 2003).

      Benitez-Diaz's sentence of 46 months is within the statutory range of 8 U.S.C.
§ 1326(b)(2) (providing limit of 20 years imprisonment). Because the sentence
imposed was within the statutory range, the waiver will be enforced. Accordingly,
Benitez-Diaz's appeal is dismissed.

      A true copy.

            Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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