                  United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-1922
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                              Chad Daniel Anderson

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________

                    Appeal from United States District Court
                        for the District of North Dakota
                                 ____________

                           Submitted: March 15, 2019
                              Filed: July 25, 2019
                                 [Unpublished]
                                 ____________

Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
                         ____________

PER CURIAM.

      Chad Anderson pled guilty to conspiracy to possess with intent to distribute
fentanyl. The district court1 sentenced Anderson to 60 months of imprisonment.
Anderson appeals his sentence and we affirm.

      1
      The Honorable John Preston Bailey, United States District Judge for the
Northern District of West Virginia, sitting by designation.
                                   I. Background

       Anderson was charged with two violations of federal law. He entered into a
plea agreement with the government and pled guilty to Count I of the
indictment — conspiracy to possess with intent to distribute a controlled substance
in violation of 21 U.S.C. §§ 841(a) and 846. The plea agreement contained an appeal
waiver and a joint recommendation clause for a sentence of 18 months of
imprisonment. The plea agreement specifically stated the recommendation was not
binding and that the sentencing court’s refusal to accept any or all terms did not give
Anderson a right to withdraw his plea. Anderson appeared in the District of North
Dakota and pled guilty.

       Between the guilty plea hearing and sentencing, Anderson’s case was
reassigned to a different district judge sitting by designation. At the sentencing
hearing, the judge announced the United States Sentencing Commission Guidelines
(“U.S.S.G.” or “Guidelines”) range was 77 to 96 months of imprisonment and then
asked the government what 18 U.S.C. § 3553(a) factors were considered to support
the joint recommendation, a sentence far below the Guidelines. After a colloquy with
the attorneys, the district court sentenced Anderson to 60 months of imprisonment.
When the defendant’s counsel asked why the jointly recommended 18-month
sentence was not used, the district court stated that based on the § 3553(a) factors he
saw no reason to vary so far downward. The district court further explained it took
into account Anderson’s substantial criminal history, violations of probation and
parole, his illicit possession of a secure digital card in jail, and the fact the offense
involved fentanyl. Anderson filed a timely appeal.

                                     II. Analysis

      On appeal, Anderson argues the government breached the terms of his plea
agreement, there was a sentencing error, and he was denied his due process rights

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when the case was reassigned to a new judge. The government urges this court to
dismiss on the grounds the appeal waiver in the plea agreement bars this appeal.

                                 A. Appeal Waiver

       Before reaching the merits of Anderson’s appeal, we begin by deciding whether
the plea agreement forecloses consideration of the appeal. “As a general rule, a
defendant is allowed to waive appellate rights” and those waivers are enforceable.
United States v. Andis, 333 F.3d 886, 889 (8th Cir. 2003) (en banc). However, this
court has imposed limits on the enforcement of appeal waivers. Id. For example,
appeal waivers must be “entered into knowingly and voluntarily.” Id. at 890. Also,
the government must not breach the plea agreement. United States v. Quebedo, 788
F.3d 768, 775 (8th Cir. 2015) (“When the government fails to fulfill the terms of the
plea agreement, an unsatisfied defendant may seek specific performance or may seek
to withdraw his plea.” (quoting United States v. Johnson, 512 F. App’x 648, 654 (8th
Cir. 2013))). Additionally, the appeal must be within the scope of the appeal waiver
in order for it to foreclose our review. Andis, 333 F.3d at 889–90. Finally, we will
not enforce a waiver if it “would result in a miscarriage of justice.” Id. at 890.

       We review de novo “[w]hether a valid waiver of appellate rights occurred.”
United States v. Pierre, 912 F.3d 1137, 1143 (8th Cir. 2019) (quoting United States
v. Sisco, 576 F.3d 791, 795 (8th Cir. 2009)). Anderson argues he did not knowingly
and voluntarily enter into the plea agreement. He contends this is so because he was
under the impression the same judge would complete both the plea entry and
sentencing. Anderson claims assurances to him that the same judge accepting the
plea agreement would be the sentencing judge played a critical role in his decision to
plead guilty, which he argues justifies a new sentencing hearing. We disagree.

      A substitution of district court judges does not impact whether the guilty plea
was entered knowingly and voluntarily. “[A] district court can help ensure that a plea

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agreement and corresponding waiver are entered into knowingly and voluntarily [by]
properly question[ing] a defendant about his or her decision to enter that agreement
and waive the right to appeal.” Id. (alterations in original) (quoting Andis, 333 F.3d
at 890–91). Here, the original judge questioned Anderson to ensure he was
competent, that he had conversed with his lawyer, and that he understood each aspect
of the guilty plea. The judge specifically asked if Anderson understood that the
sentencing recommendation was not binding, went over several paragraphs of the
plea agreement, and asked Anderson if he understood each right he was waiving.
Throughout the entire line of questioning, Anderson confirmed he understood.
Anderson also testified that no one had coerced him and that he was entering into the
agreement of his own free will. The judge never promised a particular sentence or
that his continued presence was part of the plea agreement. Therefore, we conclude
Anderson entered into the plea agreement knowingly and voluntarily.

       Next, we consider Anderson’s argument that the government breached the plea
agreement when it sought an obstruction of justice enhancement. As Anderson did
not object to the government’s actions before the district court, we apply the plain
error standard of review. See United States v. Lovelace, 565 F.3d 1080, 1086 (8th
Cir. 2009) (“[W]hen a defendant asserts for the first time on appeal that the
government breached a plea agreement, the reviewing court examines the forfeited
claim under the plain error test of Fed. R. Crim. P. 52(b).”). To satisfy the plain error
test a defendant “must show (1) an error, (2) that it is plain; and (3) that affects
substantial rights.” United States v. Darden, 915 F.3d 579, 583 (8th Cir. 2019)
(quoting United States v. Trung Dang, 907 F.3d 561, 564 (8th Cir. 2018)).

       We conclude there was no plain error here. “The Government does not breach
a plea agreement by advocating for a particular enhancement in a case in which that
enhancement ‘was an issue that [was] not . . . agreed to or specifically listed in the
plea agreement.’” Quebedo, 788 F.3d at 775 (alterations in original) (quoting United
States v. Noriega, 760 F.3d 908, 912 (8th Cir. 2014)). Anderson claims that during

                                          -4-
plea negotiations the prosecutor agreed not to seek a sentencing enhancement for
obstruction of justice. However, nothing in Anderson’s plea agreement forbids the
government from seeking an obstruction of justice enhancement. Id. at 776 (stating
“the plea agreement did not prohibit the government from seeking sentencing
enhancements for which there was no stipulation”). The only adjustment the plea
agreement referenced was a two-level downward adjustment for acceptance of
responsibility (U.S.S.G. § 3E1.1(a)), and it also explicitly allowed the government to
contest the adjustment if the defendant “attempt[s] to obstruct justice.” Therefore, we
conclude the government did not breach the plea agreement when it sought an
obstruction of justice enhancement.

      Having concluded the plea deal is still effective, we next consider under a de
novo standard whether Anderson’s arguments on appeal are within the scope of the
appeal waiver. Pierre, 912 F.3d at 1143. The plea agreement specifically states that
“the court may depart from the applicable guidelines range,” the parties’
recommendation is non-binding, and that ‘the Court’s refusal to accept any or all
terms of the Plea Agreement does not give [the] defendant a right to withdraw [the]
defendant’s guilty plea.” Given the plain terms of the plea deal and Anderson’s
sentence being below the statutory maximum, the sentence fell within the scope of
the appeal waiver.

       The only other time the court may not accept an appeal waiver is if it would be
a miscarriage of justice. Andis, 333 F.3d at 890. The miscarriage of justice exception
is narrow, principally applying to permit “appeal[s] of illegal sentences that are
greater than the maximum statutory penalty.” Pierre, 912 F.3d at 1143–44. Here the
district court judge stated that he was applying the § 3553(a) factors, and the sentence
was below the guidelines range and the statutory maximum. Any alleged abuse of the
district court’s discretion in selecting a sentence “is not subject to appeal in the face
of a valid appeal waiver.” Id. at 1144 (quoting Andis, 333 F.3d at 892). Therefore,



                                          -5-
the miscarriage of justice exception is not applicable and the appeal waiver bars
Anderson’s sentencing error claim.

                               B. Due Process Claim

       Anderson argues that the reassignment of his case to a new judge for
sentencing after his plea deal violated his due process rights and that this claim is not
barred by the appeal waiver. We are generally hesitant to enforce an appeal waiver
so as to bar appeals of future constitutional violations. See United States v. Gramm,
598 F. App’x 479, 479 (8th Cir. 2015) (reviewing a constitutional claim despite an
appeal waiver). However, we recognize Anderson’s appeal waiver was extremely
broad and we have enforced such waivers against constitutional claims in certain
circumstances. See United States v. Meirick, 674 F.3d 802, 806 (8th Cir. 2012)
(refusing to consider a substantive due process challenge to sentencing
determinations that was “cognizable more properly as a challenge to the
reasonableness of his sentence” (quoting United States v. Villareal-Amarillas, 562
F.3d 892, 898 (8th Cir. 2009))). Considering the nature of Anderson’s due process
challenge goes to the very heart of the fairness of the proceeding itself, as opposed
to the ultimate sentence imposed, we will assume without deciding Anderson did not
waive his right to appeal this issue.

       As Anderson made no objections to the reassignment, we review for plain
error. See United States v. Bruguier, 161 F.3d 1145, 1153 (8th Cir. 1998) (applying
plain error review to the substitution of a judge where the defendant did not object).
Anderson acknowledges that a defendant generally does not have the right to the
same judge at the plea and sentencing hearings. See Taylor v. Bowersox, 329 F.3d
963, 969 (8th Cir. 2003) (“[T]here is no independent federal right to be sentenced by
the same judge that took a guilty plea and [we] find no constitutional provision that
guarantees such a right.”). But he argues because the basis of his plea was that the
same judge would sentence him, the circumstances of this case created “a substantial

                                          -6-
and legitimate expectation . . . which arises to the level of a federally-protected liberty
interest.”

       Anderson made no objection to the reassignment and the record does not reflect
the reason for the reassignment. Thus, we conclude Anderson’s due process rights
were not violated. See Bruguier, 161 F.3d at 1153 (stating the court is “not willing
to reverse this sentence in the absence of a properly made objection,” as there is no
showing of error when the record does not reflect why the substitution was made).2
Further, the district judge at the sentencing hearing complied with all requirements
to familiarize himself with the case, even discussing § 3553(a) factors that influenced
his decision. See United States v. Urben-Potratz, 470 F.3d 740, 744 (8th Cir. 2006)
(stating due process rights are not infringed by reassignment after a finding of guilt
but before sentencing); United States v. Whitfield, 874 F.2d 591, 593 (8th Cir. 1989)
(“A successor judge need only familiarize himself with the evidence and legal issues
involved and exercise informed discretion in imposing [a] sentence.”). Therefore we
find no due process violation under our plain error standard of review.

                                   III. Conclusions

       For the reasons set forth herein, we affirm.
                       ______________________________




      2
      Anderson also argues the substitution of judges did not comply with Fed. R.
Crim. P. 25(b). As that is not a constitutional violation, this claim is barred by
Anderson’s appeal waiver.

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