                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 07-3256
                                     ___________

United States of America,                 *
                                          *
               Appellee,                  *
                                          * Appeal from the United States
     v.                                   * District Court for the
                                          * Eastern District of Missouri.
Darrill Gray,                             *
                                          *
               Appellant.                 *
                                     ___________

                               Submitted: April 14, 2008
                                  Filed: June 19, 2008
                                   ___________

Before WOLLMAN, BEAM, and RILEY, Circuit Judges.
                          ___________

RILEY, Circuit Judge.

       Darrill Gray (Gray) pled guilty to one count of conspiracy to commit sex
trafficking of a minor, in violation of 18 U.S.C. § 371. Gray’s plea was the product
of a plea agreement under which two other charges brought against Gray in a four
count indictment1 were dropped—Count II, sex trafficking of a child, in violation of
18 U.S.C. § 1591, and Count IV, distributing cocaine base, in violation of 21 U.S.C.
§ 841. As a part of the plea agreement, Gray agreed:




      1
          Gray was not named in Count III of the indictment.
      the defendant fully understands that there will be no right to withdraw
      the plea entered under this agreement, except where the Court rejects
      those portions of the plea agreement which deal with charges the
      government agrees to dismiss. . . .[and]

                                     ...

      [to] waive all rights to appeal all non-jurisdictional issues including, but
      not limited to, any issues relating to pre-trial motions, hearings and
      discovery and any issues relating to the negotiation, taking or
      acceptance of the guilty plea or the factual basis for the plea. . . . all
      rights to appeal all sentencing issues . . . . [and] all rights to contest the
      conviction or sentence in any post-conviction proceeding, including one
      pursuant to Title 28, United States Code, Section 2255, except for claims
      of prosecutorial misconduct or ineffective assistance of counsel.

(emphasis added). The district court2 sentenced Gray to 60 months imprisonment. On
appeal, Gray contends the district court abused its discretion in denying Gray’s
amended motion to withdraw his guilty plea.

I.     BACKGROUND
       Gray’s proposed plea agreement was sent to his attorney, Steven V. Stenger
(Stenger), who explained the agreement to Gray. On April 26, 2007, at a change of
plea hearing, Gray entered his guilty plea to Count I and the government agreed to
dismiss the remaining counts of the indictment at sentencing. At this hearing, the
court advised Gray he was under oath and Gray indicated he understood. The court
asked Gray if he had reviewed the indictment or the charges against him and Gray
acknowledged he had, expressing no questions. Gray also acknowledged (1) he had
an opportunity to review the guilty plea with his attorney, (2) he understood the guilty
plea, (3) he agreed with everything in the guilty plea and the accompanying


      2
        The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.

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stipulation, and (4) no one forced or coerced him into pleading guilty. The court also
clarified Gray understood he was pleading guilty to a felony charge which may result
in Gray’s loss of, “certain civil rights . . . such as the right to vote . . . to hold public
office . . . to serve on a jury . . . [and] to possess any kind of a firearm.” The court
next reviewed the maximum possible penalties. Gray said he understood the potential
penalties he faced for being adjudged guilty of the crime and the attendant advisory
Sentencing Guidelines which might apply.

       The court also reviewed the waivers which were part of the plea agreement,
clarifying (1) Gray understood and agreed he was waiving his “right to appeal all
nonjurisdictional issues . . . [or] to appeal all sentencing issues” if sentenced “within
the Guideline range,” and (2) Gray had discussed these waivers with his attorney.
Finally, the court questioned Gray to be sure (1) Gray understood he was waiving his
“right to challenge the conviction or the sentence in a subsequent proceeding unless”
he was challenging the conviction “on the grounds of the prosecutor’s misconduct or
ineffective assistance of counsel,” and (2) Gray had “discussed that waiver with Mr.
Stenger,” was “in agreement with” the waiver, and did not “have any questions about
[the waiver].” Gray replied he understood and agreed with the waiver and had no
questions about the waiver. Only after this and other extensive dialogue with Gray
did the court accept Gray’s plea of guilty to Count I.

       Four days later, in a letter dated April 30, 2007, and transmitted by facsimile
on May 2, 2007, Gray notified Stenger he wanted to withdraw his guilty plea. Gray
reiterated his desire to withdraw his plea in additional letters dated May 1, May 2, and
May 4, 2007. In a letter dated May 2, 2007, received by the court on May 7, 2007,
Gray asked to withdraw his plea and to have Stenger withdrawn as his attorney. On
May 16, 2007, Gray filed a pro se motion seeking appointment of new counsel. On
May 25, 2007, the court appointed new counsel for Gray and, on July 23, 2007,
Gray’s newly appointed counsel filed an amended motion to withdraw Gray’s guilty
plea.

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       On August 17, 2007, an evidentiary hearing was held on Gray’s motion to
withdraw his plea. At this hearing, Gray’s testimony contradicted his statements made
at the April 26, change of plea hearing. Gray now testified (1) he did not understand
the charges against him; (2) he did not understand what charge he was pleading guilty
to; (3) he was not shown the plea agreement until he was in court on April 26, 2007,
before the change of plea hearing; (4) he never had an opportunity to review the plea
agreement in its entirety or to discuss it with his attorney before the hearing; and (5)
he felt coerced by his attorney to enter into the guilty plea.

       Stenger’s testimony at the evidentiary hearing contradicted Gray’s testimony.
Stenger testified he was appointed to represent Gray; before Gray’s arraignment, on
April 2, 2007, Gray received a copy of the indictment which Stenger reviewed with
Gray; and after the arraignment Stenger fully explained the charges “many times” to
Gray. On April 10, 2007, Stenger traveled to the Crawford County, Missouri jail to
meet with Gray and to discuss Gray’s options, including a plea or a trial. Stenger
followed up this discussion with an April 12, 2007 letter to Gray explaining
everything in detail. On April 17, 2007, Gray sent two letters via facsimile to Stenger.
The first letter asked Stenger to “[m]ove forward with a pre-trial resolution ASAP
meaning: Plea Agreement.” The second letter stated, “I want to cooperate. No trial.”
On April 19, 2007, Gray sent another letter via facsimile to Stenger asking Stenger to,
“[l]et me know as soon as possible what’s the lowest plea bargain I can get.”

      Stenger testified he negotiated a plea agreement with the government based on
Gray’s correspondence. Stenger also testified he met with Gray on April 23, 2007,
before a scheduled proffer interview, for 45 minutes to an hour, and reviewed the
important provisions of the plea agreement, “particularly, the appellate waiver.”
Stenger testified that, on the date of the change of plea hearing, Stenger went over the
plea agreement with Gray, spending approximately an hour and a half reviewing the
plea agreement with Gray before the hearing, and “both reading the Plea Agreement


                                          -4-
to him and answering any questions he had regarding the Plea Agreement and
paraphrasing every paragraph.” Stenger opined, “I was very careful with respect to
the Plea Agreement.”

       Stenger testified Gray indicated he understood the contents of the plea
agreement. Stenger noted Gray, “had particular questions regarding the maximum for
this count that we’re talking about, Count I, that it was a five-year count, that it limited
his exposure . . . .” Stenger testified (1) it was his belief Gray “absolutely” knew what
he was doing when he executed the plea agreement, and (2) Gray told Stenger this is
what he wanted to do.

II.    DISCUSSION
       “We review the district court’s denial of the motion to withdraw [the guilty
plea] for an abuse of discretion.” United States v. Ramirez-Hernandez, 449 F.3d 824,
826 (8th Cir. 2006) (citation omitted). “A district court may permit a defendant to
withdraw a guilty plea before sentencing if there is a fair and just reason for the
withdrawal. While the standard [for allowing withdrawal] is liberal, the defendant has
no automatic right to withdraw a plea.” Id. (citations omitted).

       “As a general rule, a defendant is allowed to waive appellate rights.” United
States v. Andis, 333 F.3d 886, 889 (8th Cir. 2003) (en banc). “When we review a[n]
[appeal] waiver, we must make two determinations: that the issue falls within the
scope of the waiver and that both the plea agreement and the waiver were entered into
knowingly and voluntarily.” United States v. McIntosh, 492 F.3d 956, 959 (8th Cir.
2007) (citing United States v. Aronja-Inda, 422 F.3d 734, 737 (8th Cir. 2005) (quoting
Andis, 333 F.3d at 889-90)). “Even if both of these determinations are decided in the
affirmative, we will not enforce a plea agreement waiver if enforcement would cause
a miscarriage of justice.” Id. The government bears the burden of establishing “(1)
that the appeal is clearly and unambiguously within the scope of the waiver, (2) that
the defendant entered into the waiver knowingly and voluntarily, and (3) that


                                            -5-
dismissing the appeal based on the defendant’s waiver would not result in a
miscarriage of justice.” Id. (quoting Aronja-Inda, 422 F.3d at 737 (citing Andis, 333
F.3d at 889-90)) (internal brackets omitted).

       Gray expressly, clearly and voluntarily waived his appellate rights related to the
taking and acceptance of his plea. The waiver itself was unambiguous, and Gray’s
counsel, Stenger, and the district court accurately and thoroughly explained the plea
agreement and appeal waiver to Gray. Gray’s testimony at the change of plea hearing
strongly supported the district court’s finding Gray entered into the waiver knowingly
and voluntarily. Moreover, the plea agreement was supported by consideration, given
the government’s agreement to drop two other charges, including Count II which had
a mandatory minimum sentence of ten years. See United States v. Sanchez, 508 F.3d
456, 460 (8th Cir. 2007) (“Plea agreements are contractual in nature and should be
interpreted according to general contract principles.” (citation omitted)). No
miscarriage of justice exists. Thus, Gray may not challenge the denial of his motion
to withdraw his guilty plea on appeal because Gray knowingly and voluntarily waived
his right to appeal any issues relating to the negotiation, taking or acceptance of his
guilty plea or the factual basis for the plea.

III.   CONCLUSION
       We affirm.
                  ______________________________




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