                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-1192
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * Western District of Missouri.
                                        *
Paul Allen Cook,                        *       [UNPUBLISHED]
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: October 15, 2007
                                Filed: October 25, 2007
                                 ___________

Before BYE, BOWMAN, and SMITH, Circuit Judges.
                           ___________

PER CURIAM.

       Paul Allen Cook entered into a written agreement with the government to plead
guilty to possession with intent to distribute marijuana. See 21 U.S.C. § 841(a)(1).
In return for Cook's guilty plea, the government dismissed the remaining charges
against him. The District Court1 sentenced Cook to fifty-seven months of
imprisonment. Cook appeals, arguing that the government breached the plea
agreement by advocating for a drug quantity greater than the quantity to which he and
the government stipulated in the plea agreement. We dismiss.

      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
      We first address the government's argument that because the plea agreement
included a provision requiring Cook to waive the right to appeal his sentence, we must
dismiss this appeal. Where a defendant's appeal falls within the scope of an appeal
waiver, where both the plea agreement and the waiver were entered into knowingly
and voluntarily, and where no miscarriage of justice or illegal sentence would result
from the enforcement of the plea agreement, we will enforce the agreement and
dismiss the defendant's appeal. See United States v. Andis, 333 F. 3d 886, 889–92
(8th Cir. 2003) (en banc).

       Cook agreed to waive "his right to appeal his sentence . . . on any ground except
a sentence imposed in excess of the statutory maximum or an illegal sentence, that is,
sentencing error more serious than misapplication of the Sentencing Guidelines, an
abuse of discretion, or the imposition of an unreasonable sentence." Plea Agreement
at 11. Cook does not dispute that he entered into the plea agreement knowingly and
voluntarily. And despite his arguments to the contrary, Cook's sentence is not illegal.
See Andis, 333 F.3d at 892 ("[A] sentence is illegal when it is not authorized by law;
for example, when the sentence is in excess of a statutory provision or otherwise
contrary to the applicable statute." (citations and quotations omitted)). We conclude
that the plea agreement—including the provision requiring that Cook waive his right
to appeal—is valid and enforceable and that Cook's appeal should be dismissed.

       Even if we considered the merits of Cook's argument on appeal, namely, that
a miscarriage of justice occurred because the government breached the plea
agreement, we would affirm the sentence imposed by the District Court. As we noted
in Andis a miscarriage of justice, although never exhaustively defined by our court,
has been interpreted to include a sentence in excess of the applicable statutory
maximum, a sentence based on constitutionally impermissible factors, a sentence
imposed without effective assistance of counsel, and a sentence in violation of the
terms of a plea agreement. Id. at 891. We review issues pertaining to the
interpretation and enforcement of a plea agreement de novo. United States v. Has No

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Horses, 261 F.3d 744, 750 (8th Cir. 2001), cert. denied, 534 U.S. 1150 (2002). "Plea
agreements are contractual in nature, and should be interpreted according to general
contract principles." United States v. DeWitt, 366 F.3d 667, 669 (8th Cir. 2004). In
order to satisfy due process, the government must fulfill any promise it makes in a
plea agreement that constitutes a significant element of the defendant's consideration
or inducement for entering into the agreement. Santobello v. New York, 404 U.S.
257, 262 (1971).

       In this case, the plea agreement began with a statement of facts establishing that
Cook and other individuals had been conducting marijuana-distribution operations out
of Cook's Sturgeon, Missouri, residence. The amount of marijuana distributed from
Cook's home was described by one witness as "large" and "in excess of 100 pounds
[approximately 45 kilograms] . . . on several occasions." Plea Agreement at 2. When
law-enforcement officers executed a search warrant at Cook's residence, they
recovered "scales, drug paraphernalia, [and] approximately 40 pounds [roughly 18
kilograms] of marijuana." Id. at 3. The plea agreement did not contain an express
stipulation to the total drug quantity for which Cook would be held responsible. It
did, however, specify that the applicable United States Sentencing Guidelines section
for Cook's offense of conviction was "U.S.S.G. § 2D1.1, which provides for a base
offense level of at least 20, but could be as high as 28." Id. at 7.

       At the plea hearing, the government recited the facts as stated in the plea
agreement and offered to provide testimony of the two witnesses identified in the
agreement in order to prove the total drug quantity attributable to Cook. The
government stated that one of its witnesses would testify that "close[] to a thousand
pounds" (or about 454 kilograms) of marijuana had been stored at Cook's residence.
Tr. of Hr'g on Change of Plea at 13. Another witness would testify that "at least 120"
additional pounds (or about 54 kilograms) of marijuana had been stored at Cook's
residence. Id. Cook objected to the government's statement regarding drug quantity,
asserting that the plea agreement limited the quantity of marijuana for which he was

                                          -3-
responsible to the roughly 18 kilograms of marijuana seized from his home at the time
of his arrest. The District Court ordered a Presentence Investigation Report (PSR),
which attributed 271.3 kilograms of marijuana to Cook. PSR at 12. Cook filed
objections to the PSR, again disputing the drug-quantity calculation and urging an 18-
kilogram limit on that amount.

       The District Court held two sentencing hearings at which both Cook and the
government called witnesses. At the conclusion of the second hearing, the District
Court determined that Cook's base offense level was 26, a level corresponding with
at least 100 but less than 400 kilograms of marijuana. See U.S.S.G. § 2D1.1(c)(7).

        Cook now argues that he reasonably believed the terms of the plea agreement
limited his drug-quantity exposure to the roughly 18 kilograms of marijuana seized
from his residence. Cook's argument fails. Cook agreed that the base offense level
for his offense of conviction would be "at least 20, but could be as high as 28." Plea
Agreement at 7. By stipulating to a base offense level of "at least 20" and "as high as
28," Cook effectively stipulated to a quantity of marijuana falling within the range
represented by those offense levels. A base offense level of 20 corresponds to at least
40 but less than 60 kilograms of marijuana, and a base offense level of 28 corresponds
to at least 400 but less than 700 kilograms of marijuana. See U.S.S.G. § 2D1.1(c)(6),
(10). By entering into the plea agreement, Cook admitted responsibility for a quantity
of marijuana of between 40 and 700 kilograms. The government did not advocate for
a drug quantity outside the agreed-upon range.

      Cook argues that our decision in United States v. DeWitt compels us to
conclude that the government breached the plea agreement in this case. In DeWitt,
the government and the defendant stipulated in the plea agreement to a specific drug
quantity for which the defendant would be held accountable. 366 F.3d at 669. We
held that the government breached the plea agreement when it initiated the
presentation of evidence for the purpose of attributing a greater drug quantity to the

                                         -4-
defendant pursuant to the broad relevant-conduct provision in the plea agreement. Id.
at 669–70. In contrast to the plea agreement in DeWitt, however, the plea agreement
in this case did not limit the government to a specific drug quantity, and the drug
quantity advocated by the government was well within the corresponding base-
offense-level range identified in the plea agreement. We conclude that the
government did not breach the plea agreement.

      In sum, the waiver-of-appeal provision in the plea agreement forecloses Cook's
arguments on appeal and therefore the appeal is dismissed. And furthermore, even if
the waiver-of-appeal provision were unenforceable, Cook's arguments on appeal fail,
and we would affirm the judgment of the District Court.
                       ______________________________




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