                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 04-4115
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Eastern District of Missouri.
Gregory Burns,                            *
                                          * [PUBLISHED]
             Appellant.                   *
                                     ___________

                               Submitted: April 12, 2005
                                  Filed: June 10, 2005
                                   ___________

Before COLLOTON, McMILLIAN, and FAGG, Circuit Judges.
                         ___________

PER CURIAM.

       Gregory Burns appeals a sentence of 292 months’ imprisonment imposed by
the district court after Burns pled guilty to possession with intent to distribute heroin,
in violation of 21 U.S.C. § 841(a)(1), possession of a firearm as a previously
convicted felon, in violation of 18 U.S.C. § 922(g)(1), and possession of a firearm
during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c).
Burns wishes to argue that the sentence imposed was contrary to the Supreme Court’s
recent decision in United States v. Booker, 125 S. Ct. 738 (2005).
      The government has moved to dismiss the appeal based on a paragraph in a
plea agreement executed by Burns and the government. The agreement provides in
relevant part that:

      both defendant and the Government hereby waive all rights to appeal all
      non-jurisdictional issues including, but not limited to, any issues
      relating to: pre-trial motions, hearings and discovery; the negotiation,
      taking, or acceptance of the guilty plea; the factual basis for the plea; the
      sentence imposed; and the establishment of the Total Offense Level or
      Criminal History Category determined by the Court.

(emphasis added). Burns does not assert that Booker claims fall outside the scope of
the appeal waiver, or that the waiver was not knowing and voluntary. He does
contend, however, that the appeal waiver should not be enforced, because his
sentence is “illegal” under Booker, and the imposition of an illegal sentence is a
“miscarriage of justice” that precludes enforcement of an appeal waiver under our
court’s decision in United States v. Andis, 333 F.3d 886 (8th Cir.) (en banc), cert.
denied, 540 U.S. 997 (2003).

       Burns was sentenced as a “career offender” under USSG § 4B1.1 after the
district court found that he had sustained two prior convictions for either a crime of
violence or a controlled substance offense. We disagree with Burns’s contention that
the district court violated the Sixth Amendment by sentencing him as a career
offender under the mandatory sentencing guidelines. Booker held that “[a]ny fact
(other than a prior conviction) which is necessary to support a sentence exceeding
the maximum authorized by the facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”
125 S. Ct. at 756 (emphasis added). Burns points to no fact other than a prior
conviction that increased the maximum authorized sentence in his case, so we
conclude that he has not established a constitutional violation. See United States v.
Marcussen, 403 F.3d 982, 984 (8th Cir. 2005).

                                          -2-
       We do believe, however, that Burns has asserted a non-constitutional error
under Booker, because the district court sentenced Burns pursuant to the mandatory
guidelines, rather than under an advisory guideline scheme. In other words, the
district court operated as though it was bound to sentence Burns within a guideline
range of 292 to 365 months (based on a total offense level of 35 and a criminal
history category VI), even though the court could have sentenced him to a lesser term
of imprisonment if there were “reasonable” grounds to do so under 18 U.S.C.
§ 3553(a). See Booker, 125 S. Ct. at 757, 765. Burns raised an objection based on
Blakely v. Washington, 124 S. Ct. 2531 (2004), at his sentencing hearing, and this
objection may well have been sufficient to preserve a claim of non-constitutional
Booker error. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en
banc). Because Burns was sentenced at the bottom of the mandatory guideline range,
he perhaps would be entitled to a remand for resentencing if he has not waived his
right to appeal. See United States v. Haidley, 400 F.3d 642, 645 (8th Cir. 2005).

       We nonetheless conclude that Burns waived his right to appeal the sentence
imposed and that the waiver is enforceable. We held in United States v. Andis, 333
F.3d 886, that valid appeal waivers generally are enforceable, subject only to an
exception where enforcement would result in a “miscarriage of justice.” While the
court did say that an “illegal sentence” could be a “miscarriage of justice,” we
emphasized that the exception to general enforceability of appeal waivers was
“extremely narrow” and said that “[a]ny sentence imposed within the statutory range
is not subject to appeal.” Id. at 892. For purposes of considering enforcement of
appeal waivers, the Andis court used a specialized meaning of “illegal sentence,” to
wit: a sentence outside the statutory range authorized for the offenses of conviction.
Burns’s sentence was consistent with the statutory provisions; his only argument is
that the district court could have sentenced him elsewhere within the statutory range.
We conclude that this possibility does not establish a “miscarriage of justice” within
the meaning of Andis. Accord United States v. Green, 405 F.3d 1180, 1191-94 (10th
Cir. 2005). This holding is consistent with our decisions in United States v. Killgo,

                                         -3-
397 F.3d 628, 630 n.2 (8th Cir. 2005), and United States v. Fogg, 2005 WL 1186535,
at * 1-2 (8th Cir. May 20, 2005), which enforced appeal waivers with respect to
claims based on Booker.1

      Accordingly, the government’s motion to dismiss the appeal is granted, and the
appeal is dismissed.
                          ______________________________




      1
       Our court in Killgo also said that the appeal waiver in that case “did not waive
the application of a constitutional standard of review on appeal,” 397 F.3d at 630 n.4,
and proceeded to review Killgo’s sentence for “unreasonableness” with regard to 18
U.S.C. § 3553(a) as prescribed by Booker. Id. at 630-32. We are not sure what the
Killgo panel meant by a “constitutional standard of review” that was not waived in
Killgo’s plea agreement, because the “reasonableness” standard of review adopted in
Booker was not dictated by the Constitution. See Booker, 125 S. Ct. at 766 (“[W]e
read the statute as implying this appellate standard of review.”) (emphasis added).
We are unsure why a defendant’s waiver of a Sixth Amendment claim under Booker
would be enforceable, while his waiver of a non-constitutional claim that a sentence
is unreasonable with regard to § 3553(a) would be unenforceable. In any event,
Burns does not argue that his sentence is “unreasonable” with respect to § 3553(a),
so we need not address whether the appeal waiver in this case would be enforceable
with respect to such an argument.

                                         -4-
