                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2348
                                   ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         *   Appeal From the United States
      v.                                 *   District Court for the
                                         *   District of Nebraska.
Jorge A. Aronja-Inda,                    *
                                         *
             Appellant.
                                   ___________

                             Submitted: March 16, 2005
                                Filed: September 6, 2005
                                 ___________

Before MURPHY, HEANEY, and SMITH, Circuit Judges.
                          ___________

HEANEY, Circuit Judge.

      Pursuant to a plea agreement, Jorge A. Arjona-Inda1 pled guilty to one count
of conspiracy to distribute 50 grams or more of cocaine base (crack), 500 grams or




      1
        At the change of plea hearing, Arjona-Inda informed the court that his name
as docketed was misspelled. Despite this and the fact that he has consistently signed
his name as “Jorge A. Arjona Inda” in court documents, no changes were made in the
district court caption.
more of cocaine, and 500 grams or more of methamphetamine.2 The district court3
sentenced him to 324 months of imprisonment, to be followed by five years of
supervised release. On appeal, Arjona-Inda contends the district court erred in not
granting him a guidelines adjustment for acceptance of responsibility, and violated
his Sixth Amendment rights by sentencing him on the basis of facts not proven to a
jury beyond a reasonable doubt. Because Arjona-Inda waived his right to pursue
these sentencing challenges in his plea agreement, we dismiss the appeal.

                                 BACKGROUND

       Arjona-Inda was charged by indictment with involvement in a conspiracy to
distribute large quantities of crack, cocaine, and methamphetamine from roughly
June 1, 2002 through April 21, 2003. Rather than take the matter to trial, Arjona-Inda
entered into a plea agreement, through which the government agreed to dismiss one
count charging Arjona-Inda with distribution of methamphetamine in exchange for
his guilty plea to the conspiracy charge. The agreement contained a number of other
provisions, including the following language:

      The defendant hereby knowingly and expressly waives any and all rights
      to appeal the defendant’s conviction in this case, including a waiver of
      all motions, defenses, and objections which defendant could assert to the
      charges or to the Court’s entry of Judgment against defendant, including
      a review pursuant to 18 U.S.C. § 3742 of any sentence imposed and any
      and all issues inhering therein, except for the following:

      a. The right to timely challenge the defendant’s conviction and the
      sentence of the Court should the Eighth Circuit Court of Appeals or the
      United States Supreme Court later find that the substantive basis of

      2
       21 U.S.C. §§ 841(a)(1), 841(b)(1), 846.
      3
       The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.

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      defendant’s plea of guilty and resulting conviction fails to state a crime
      upon which defendant could be convicted.

      b. Any issue involving a matter of law brought to the Court’s attention
      at the time of sentencing in which the Court agrees further review is
      needed.

(Plea Agreement at ¶ 5 (emphasis added).) Arjona-Inda signed the agreement July 30,
2003.

       On August 6, 2003, the court held a change of plea hearing. At that hearing,
the presiding magistrate4 questioned Arjona-Inda about his plea agreement and the
waiver of appellate rights contained therein. The magistrate first asked Arjona-Inda
if he understood that as part of his plea agreement he “waived or gave up [his] right
to appeal,” to which Arjona-Inda responded yes. (Change of Plea Hr’g Tr. at 11-12.)
The magistrate then reiterated, “I want to make it clear to you that as part of your plea
agreement that you waive and give up your right to appeal your conviction and
sentence to the court of appeals. Do you understand that?” (Id. at 12.) Again,
Arjona-Inda replied yes.

       Despite his guilty plea on August 6, 2003, Arjona-Inda wrote a letter to the
court dated August 7, 2003, disputing much of the government’s case against him.
He also challenged the presentence report’s calculation of drug quantity, as well as
its suggested guidelines adjustments. At a sentencing hearing held December 1,
2003, the government presented the testimony of a number of witnesses, including
two who had bought drugs directly from Arjona-Inda. They testified to purchasing
what amounted to be several pounds of powder cocaine from Arjona-Inda or from his
associate, “Chewy.” The witnesses testified that Arjona-Inda knew that the powder


      4
       The Honorable Thomas D. Thalken, United States Magistrate Judge for the
District of Nebraska.

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cocaine was going to be “rocked up” into crack by the purchasers. Testimony from
these witnesses and others also established that Arjona-Inda sold a total of about a
pound and a half of high-grade methamphetamine, known as “crystal meth” or “ice,”
to others, including an undercover officer. During one meeting with purchasers,
Arjona-Inda displayed a Tec-9 pistol while talking about the purchasers’ drug debts.
Arjona-Inda testified at the sentencing hearing. He admitted being involved with one
transaction involving a kilogram of cocaine and one involving a pound of
methamphetamine, but no others. He further denied ever having a weapon during
drug transactions.

      The district court accepted the testimony of the government’s witnesses. It
charged Arjona-Inda with responsibility for roughly 638 grams of methamphetamine
and 2.5 kilograms of crack.5 With an enhancement due to the presence of a dangerous
weapon and no downward adjustment for acceptance of responsibility, Arjona-Inda
had a guideline range of 324-405 months. The district court imposed a sentence of
324 months. This appeal followed.

                                   ANALYSIS

      The “general rule” is that “a defendant is allowed to waive appellate rights,”
including those involving the sentence imposed. United States v. Andis, 333 F.3d
886, 889 (8th Cir. 2003) (en banc).

      When reviewing a purported waiver, we must confirm that the appeal
      falls within the scope of the waiver and that both the waiver and plea
      agreement were entered into knowingly and voluntarily. Even when



      5
       Although the cocaine was sold as powder, the district court converted it to
crack for the purposes of determining drug quantity because it was reasonably
foreseeable to Arjona-Inda that the cocaine was going to be converted to crack.

                                        -4-
       these conditions are met, however, we will not enforce a waiver
       where to do so would result in a miscarriage of justice.

Id. at 889-90. Thus, in order to establish that the defendant’s appeal is barred by his
waiver, the government must establish: (1) that the appeal is within the scope of the
waiver, (2) that the defendant entered into the waiver knowingly and voluntarily, and
(3) that dismissing the appeal based on the defendant’s waiver would not result in a
miscarriage of justice. Id.; see also United States v. Blue Coat, 340 F.3d 539, 541-42
(8th Cir. 2003) (interpreting Andis).

       The burden of proof is on the government to show that the scope of a
defendant’s waiver of appellate rights “clearly and unambiguously” includes the
issues asserted on appeal. Andis, 333 F.3d at 890. “Plea agreements will be strictly
construed and any ambiguities in these agreements will be read against the
Government and in favor of a defendant’s appellate rights.” Id.

       As is evident from the language of the plea agreement, the document contained
a comprehensive waiver of appellate rights, particularly with regard to sentencing,
with only two exceptions. The first exception deals with circumstances where a
higher court finds that the substantive crime of conviction is not criminal, or the
factual basis for that conviction fails to state a crime. That is not the situation for this
controlled substance offense. The second exception requires the issue to be one of
law, and conditions the exception on the district court’s acknowledgment that it needs
guidance on the issue. Nothing in the record shows the district court had concerns
about either the acceptance of responsibility reduction or the Sixth Amendment issue
Arjona-Inda pursues here. Thus, the government has established that the appellate
issues presented here are within the scope of Arjona-Inda’s appeal waiver. See
United States v. Fogg, 409 F.3d 1022, 1025-26 (8th Cir. 2005) (finding that a plea
agreement containing an appeal waiver with limited exceptions did not reserve for



                                            -5-
appeal claims of error related to guidelines adjustments and the Sixth Amendment
when those matters were not among the enumerated exceptions).

       “A defendant must enter into a plea agreement and waiver knowingly and
voluntarily for these agreements to be valid.” Andis, 333 F.3d at 890. We are
satisfied that Arjona-Inda’s waiver was knowing and voluntary. First, it is a part of
his written plea agreement, which we presume he read before signing. Moreover, the
magistrate extensively questioned Arjona-Inda about this issue at his change of plea
hearing, probing whether Arjona-Inda understood the effect of his decision to waive
appellate rights. See Andis, 333 F.3d at 890-91 (“One important way a district court
can help ensure that a plea agreement and corresponding waiver are entered into
knowingly and voluntarily is to properly question a defendant about his or her
decision to enter that agreement and waive the right to appeal.”). Based on Arjona-
Inda’s signing of the plea agreement, our review of the change-of-plea colloquy, and
no contrary suggestion by Arjona-Inda, we conclude that Arjona-Inda’s waiver of
appellate rights was knowing and voluntary. See Blue Coat, 340 F.3d at 541 (giving
weight to the fact that “Blue Coat has not argued that he entered into the waiver
unknowingly or involuntarily”).

       Andis reaffirmed the long-standing rule of this circuit that “we will still refuse
to enforce an otherwise valid waiver if to do so would result in a miscarriage of
justice.” Andis, 333 F.3d at 891. In United States v. Killgo, 397 F.3d 628, 629 n.2
(8th Cir. 2005), a panel of this court reviewed a waiver similar to the one which
Arjona-Inda signed. The Killgo court refused to consider a defendant’s appellate
argument that his sentence violated the Sixth Amendment as interpreted by the
Supreme Court in Blakely v. Washington, 542 U.S. 296 (2004), and United States v.
Booker, 125 S. Ct. 738 (2005), and thus implicitly found no miscarriage of justice
would result from enforcing the waiver. Killgo, 397 F.3d at 629 n.2. Subsequent
decisions have followed with similar results. See United States v. Young, 2005 WL
1558486, at *2 (8th Cir. July 5, 2005) (finding no miscarriage of justice in enforcing

                                          -6-
a defendant’s appellate waiver to preclude his Booker claim); United States v.
Reeves, 2005 WL 1366432 (8th Cir. June 10, 2005) (same); Fogg, 409 F.3d at 1025-
26 (same). Similarly, our court en banc has explicitly held that “an allegation that the
sentencing judge misapplied the Sentencing Guidelines . . . is not subject to appeal
in the face of a valid appeal waiver.” Andis, 333 F.3d at 892. We have no occasion
to overturn those decisions here.

                                   CONCLUSION

      Arjona-Inda challenges his sentence on appeal, but does so on grounds that
were within the scope of a valid waiver of appellate rights. Accordingly, we dismiss
the appeal.
                       ______________________________




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