                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2097
                                   ___________

United States of America,               *
                                        *
             Appellant,                 * Appeal from the United States
      v.                                * District Court for the Eastern
                                        * District of Missouri.
Benjamin G. Slicer,                     *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: November 18, 2003

                                  Filed: March 24, 2004
                                   ___________

Before LOKEN, Chief Judge, McMILLIAN, BEAM, Circuit Judges.
                             ___________

BEAM, Circuit Judge.

       Benjamin Slicer pled guilty to the offense of possession with the intent to
distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1). After the district court determined that Slicer was not subject to an
enhanced mandatory minimum sentence of twenty years in prison under 21 U.S.C.
§ 841(b)(1)(A) based on his prior suspended sentence for a felony drug offense in
Missouri state court, the district court sentenced Slicer to 180 months' imprisonment
followed by a five-year term of supervised release. The government appeals,
asserting that Slicer should have been subjected to the enhanced mandatory minimum
sentence. Because we conclude that Slicer's prior suspended sentence satisfies
section 841, we reverse and remand for resentencing.
I.    BACKGROUND

      On June 18, 1996, Slicer pled guilty to a class C felony, possession of a
controlled substance, in the Circuit Court of Butler County, Missouri. Slicer received
a suspended sentence with three years' supervised probation.

       On August 1, 2002, the government executed a search warrant at Slicer's
residence, seizing over fifty grams of methamphetamine along with other drug
evidence. A grand jury returned an indictment on August 15, 2002, charging Slicer
with two counts of possession with intent to distribute a controlled substance in
violation of 21 U.S.C. § 841(a)(1). Slicer pled guilty to count two of the indictment
on November 20, 2002, and was sentenced on March 24, 2003. Count one was
dismissed on motion of the government.

       Before Slicer's plea hearing, the government filed a notice under 21 U.S.C.
§ 851 to request an enhancement from the ten-year mandatory minimum under section
841(b)(1)(A) to the twenty-year mandatory minimum based on Slicer's prior felony
drug offense conviction. The district court considered the application of section
841(b)(1)(A) at sentencing and evaluated the applicability of existing Eighth Circuit
precedent including United States v. Stallings, 301 F.3d 919 (8th Cir. 2002), United
States v. Franklin, 250 F.3d 653 (8th Cir. 2001), and United States v. Ortega, 150
F.3d 937 (8th Cir. 1998). The district court concluded it was bound by Stallings and
did not apply the enhancement.

II.   DISCUSSION

      A.     Enhancement

      We must decide whether Slicer's prior suspended sentence for the Missouri
felony drug offense qualifies under the section 841(b)(1)(A) enhancement provision.
Under this provision, a person who possesses fifty or more grams of

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methamphetamine with intent to distribute "after a prior conviction for a felony drug
offense has become final . . . shall be sentenced to a term of imprisonment which may
not be less than 20 years and not more than life imprisonment . . . [with an additional
term of] supervised release of at least 10 years in addition to such term of
imprisonment." 21 U.S.C. § 841(b)(1)(A). Because resolution of this claim requires
us to interpret the statute, we review de novo the district court's use of Slicer's prior
convictions for enhancement purposes. Stallings, 301 F.3d at 920.

       In Stallings, a panel of this circuit concluded that a prior California felony drug
possession conviction did not trigger the enhancement provision of section
841(b)(1)(A). Id. at 920-21. The Stallings defendant had received probation with a
suspended sentence for the prior California felony drug offense. Id. at 921. Applying
California state law and federal law, this court determined that because the
defendant's sentence was suspended, and his probation had never been revoked, there
had been no judgment entered against the defendant. Id. at 922. Thus, we held that
the district court improperly applied the enhancement provision. Id. In the instant
case, the district court held that it was bound by Stallings and denied enhancement
of Slicer's sentence under section 841(b)(1)(A). Slicer urges us to apply Stallings and
affirm the district court.

       The government challenges the district court's application of Stallings, arguing
that enhancement is proper given Slicer's prior Missouri felony drug offense. We
have dealt with similar applications of section 841(b)(1)(A) enhancements in other
cases. In Franklin, the defendant was convicted of violating 21 U.S.C. § 841(a)(1)
and the district court enhanced the defendant's sentence under section 841 based upon
a prior Missouri conviction that resulted in a suspended sentence. 250 F.3d at 656,
665. In affirming the enhancement of the defendant's sentence, this court recognized
that although "Missouri has chosen not to treat suspended sentences as final
judgments, Missouri law does not control the question of what constitutes a
'conviction' for purposes of 21 U.S.C. § 841." Id. (citing supporting authority from
the Eighth Circuit and several sister circuits for the proposition that, absent a plain

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indication to the contrary, when Congress enacts a statute it does not intend to make
its application dependent upon state law).

       In Ortega, the defendant was convicted of various drug trafficking offenses
under section 841. 150 F.3d at 941. The district court enhanced Ortega's sentence
under section 841(b)(1)(A) based on two prior convictions for felony drug offenses
in Missouri. Id. at 948. Ortega had received a term of imprisonment on one of the
prior offenses and a suspended sentence with three years of supervised probation for
the other. Id. at 947. Just as Slicer contends in this case, Ortega argued that his prior
conviction that resulted in a suspended sentence did not qualify as a conviction under
state law and thus should not count as a prior final conviction under section
841(b)(1)(A). Id. at 948. This court rejected that argument, noting that the
determination of what constitutes a "final conviction" for purposes of section 841(b)
is a question of federal law. Id. We held that Ortega's prior felony offenses qualified
as prior final felony drug convictions for purposes of section 841(b). Id.

       We find the facts concerning Slicer's prior Missouri felony drug offense and
guilty plea, for which he served supervised probation and received a suspended
sentence, to be on all fours with the facts of Ortega and Franklin.1 Applying the
reasoning of these authorities, Slicer's sentence should have been enhanced under
section 841(b)(1)(A).




      1
        To the extent the application of federal law in Ortega and Franklin conflicts
with the application of state law in Stallings, "under the rules of this circuit, we are
'free to cho[o]se which line of cases to follow.'" United States v. Maxon, 339 F.3d
656, 659 (8th Cir. 2003) (quoting Kostelec v. State Farm Fire & Cas. Co., 64 F.3d
1220, 1228 n.8 (8th Cir. 1995)) (alteration in original). On these facts, however, the
choice is made for us because we find ourselves in identical circumstances as those
facing the Ortega and Franklin panels.

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      B.     Waiver

      Slicer further argues that the government's appeal in this case should be
dismissed because the government entered into a general waiver of its appellate rights
on the issue before this court. The plea agreement states:

             [B]oth the defendant and the Government hereby mutually
             agree to waive all rights to appeal all non-jurisdictional
             issues, including but not limited to . . . whatever sentence
             is imposed . . . reserving only the right to appeal from an
             upward or downward departure from the Guideline range
             that is established by the Court at sentencing and the right
             to appeal any sentence enhancement imposed by the Court
             for the defendant's prior felony drug conviction under 21
             U.S.C. §§ 851 and 841(b)(1)(A).

Emphasis added.

       We need not determine whether the government waived the right to appeal the
district court's failure to apply the section 841(b)(1)(A) enhancement given our
determination that the court imposed an illegal sentence. Enforcing that waiver
would result in a miscarriage of justice. "[W]e will . . . refuse to enforce an otherwise
valid waiver if to do so would result in a miscarriage of justice." United States v.
Andis, 333 F.3d 886, 891 (8th Cir. 2003) (en banc), cert. denied, 124 S. Ct. 501
(2003). The imposition of an illegal sentence is one example of circumstances that
might constitute a miscarriage of justice. "[T]he illegal sentence exception to the
general enforceability of an appeal waiver is an extremely narrow exception." Id. at
892. "'[A] sentence is illegal when it is not authorized by the judgment of conviction
or when it is greater or less than the permissible statutory penalty for the crime.'" Id.
(quoting United States v. Greatwalker, 285 F.3d 727, 729 (8th Cir. 2002)).




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III.   CONCLUSION

      For the reasons stated herein, we reverse and remand for resentencing in
accordance with this opinion.

                     ______________________________




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