                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-1592
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                              Antonio Ramon Guzman

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the District of South Dakota - Sioux Falls
                                   ____________

                            Submitted: October 19, 2012
                              Filed: February 21, 2013
                                   ____________

Before LOKEN, SMITH, and BENTON, Circuit Judges.
                           ____________

SMITH, Circuit Judge.

      Antonio Ramon Guzman pleaded guilty to possession with intent to distribute
a controlled substance, in violation of 21 U.S.C. § 841(a)(1). Guzman's plea
agreement included an appeal waiver. The district court1 sentenced him to 121

      1
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
months' imprisonment to be followed by five years of supervised release. Guzman
appeals, arguing that (1) the government breached the plea agreement by having him
plead guilty to a different offense with a higher mandatory minimum sentence than
the offense for which he was indicted, and (2) the plea agreement was ambiguous and
should be construed against the government. We enforce the appeal waiver contained
in the plea agreement and dismiss Guzman's appeal.

                                    I. Background
       After Guzman attempted to distribute methamphetamine ("meth") to an
undercover police officer, he was arrested. According to the presentence investigation
report (PSR), Guzman possessed 370.5 grams of a mixture of meth (125.8 grams of
actual meth based on a Drug Enforcement Agency lab test) during the final buy
arrangement with the undercover officer.

       The government filed an indictment charging that Guzman "did knowingly and
intentionally possess with the intent to distribute 50 grams or more of a mixture and
substance containing methamphetamine, a Schedule II controlled substance, in
violation of 21 U.S.C. § 841(a)(1)." At Guzman's initial appearance, the magistrate
judge reviewed the indictment with Guzman and advised him that the "[p]ossible
penalties" were a "minimum [of] 5 years to [a] maximum of 40 years[']
imprisonment." Guzman pleaded not guilty to the charges set forth in the indictment.
Thereafter, Guzman and the government entered into a plea agreement that was
signed by Guzman, Guzman's attorney, and the government. The plea agreement
provided, among other things, that (1) Guzman would plead guilty to violating
§ 841(a)(1); (2) the government had discretion to recommend any sentence within the
statutory limits; and (3) Guzman waived his right to appeal, except for the ability to
"appeal any decision by the Court to depart upward pursuant to the sentencing
guidelines as well as the length of his sentence for a determination of its substantive
reasonableness should the Court impose an upward departure or an upward variance
pursuant to 18 U.S.C. § 3553(a)."

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      Paragraph C of the plea agreement states, in relevant part:

      The Defendant will plead guilty to the Indictment filed in this case,
      which charges the violation of 21 U.S.C. § 841(a)(1). The charge carries
      a mandatory minimum sentence of 10 years in prison and a maximum
      sentence of life in prison, a $10 million fine, or both, and a term of
      supervised release.

(Emphasis added.)

     At the change-of-plea hearing, the district court reviewed "the mandatory
minimum and the possible maximum penalties" with Guzman, stating:

      I wanted to go over with you what the mandatory minimum and the
      possible maximum penalties are. These are a little different than what
      was in your Plea Agreement, so I want you to listen carefully as I go
      through this. It's actually in some instances less than what was in your
      Plea Agreement.

             The mandatory minimum period of imprisonment is a period of
      not less than 10 years, and the maximum period of imprisonment is not
      more than 40 years. The maximum fine is not more than $5 million.

                                       ***

           Do you understand those are the mandatory minimum and the
      maximum penalties that you face if you plead guilty?

      Guzman replied, "Yes, Your Honor." Guzman also acknowledged that he was
waiving his right to appeal, except if the court sentenced him above the Guidelines
range. The district court accepted Guzman's guilty plea, finding that the plea was
"knowing and voluntary."




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       Guzman later filed a pro se motion to withdraw his guilty plea. He argued that
the plea agreement violated his Fifth Amendment due process rights because the
indictment charged him with possession with intent to deliver a 50-gram mixture of
meth, but the factual basis statement of the plea agreement stated that he "possessed
50 grams or more of methamphetamine (pure) with the intent to distribute it to the
undercover officer." Guzman subsequently withdrew this pro se motion. At the time
of the withdrawal, Guzman stated that his withdrawal of the motion was knowingly,
voluntarily, and intelligently made following four meetings with his counsel. The
district court granted the motion to withdraw.

       The PSR calculated a total offense level of 29 (base offense level of 32 with
a three-level reduction for acceptance of responsibility) and a criminal history
category of IV. The resulting Guidelines range was 121 to 151 months' imprisonment.
Guzman filed no objections to the PSR. During the sentencing hearing, confusion
arose as to the correct mandatory minimum. The district court initially stated that the
mandatory minimum was five years' imprisonment, but the government and defense
counsel ultimately agreed that the mandatory minimum was ten years' imprisonment
based on the factual basis statement that Guzman had signed. The factual basis
statement indicated that Guzman possessed with intent to distribute 50 grams or more
of pure meth rather than a meth mixture. The district court sentenced Guzman to 121
months' imprisonment followed by five years of supervised release. The court based
its sentence on Guzman's role in the offense and his lack of full cooperation with law
enforcement.

      Guzman filed a timely notice of appeal, and the government moved to dismiss
the appeal "based upon the valid and enforceable appellate rights waiver contained
within the written plea agreement."




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                                   II. Discussion
      Guzman argues that his case should be remanded for resentencing because the
plea agreement was ambiguous as to the mandatory minimum for the offense.
Guzman did not raise this issue before the district court and acknowledges that if we
address the issue he raises, we would do so under a plain-error review standard.2

             "We review de novo the issue of whether a defendant has
      knowingly and voluntarily waived rights in a plea agreement." United
      States v. Swick, 262 F.3d 684, 686 (8th Cir. 2001). "We review
      questions regarding the interpretation and enforcement of plea
      agreements de novo. Where a plea agreement has been accepted by the
      court, we generally interpret the meaning of the terms in the agreement
      according to basic principles of contract law." United States v. Mosley,
      505 F.3d 804, 808 (8th Cir. 2007).

United States v. Selvy, 619 F.3d 945, 949 (8th Cir. 2010).

      "When reviewing a purported [appeal] waiver [contained in a plea agreement],
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." Andis, 333

      2
        Guzman also argues that the government breached the plea agreement by
arguing for a ten-year mandatory minimum sentence during sentencing rather than a
five-year mandatory minimum sentence, which matched the charge in the indictment.
We conclude that Guzman waived this argument by withdrawing his pro se motion
to withdraw his guilty plea prior to sentencing. See United States v. Wisecarver, 598
F.3d 982, 988 (8th Cir. 2010) (explaining that a defendant waives an argument by
intentionally relinquishing or abandoning a known right and that waived claims are
not reviewable on appeal). As the government points out, in withdrawing his pro se
motion to withdraw his guilty plea, Guzman acknowledged that his "decision to
withdraw these pleadings is knowingly, voluntarily, and intelligently made following
four meetings with counsel." Guzman also filed and signed a consent in which he
admitted that he "thoroughly discussed the purpose and the effect" of the withdrawal
of his pro se documents and consented to their withdrawal.

                                         -5-
at 889–90. But if enforcing the waiver "would result in a miscarriage of justice," we
will decline to enforce the waiver "[e]ven when these conditions are met." Id. at 890.

       We have previously held that a defendant's appeal waiver in a plea agreement
was "knowing and voluntary" where the "plea agreement state[d] that [the] guilty plea
was 'voluntary' and not coerced," the plea agreement stated that the defendant
"discussed the case and her rights with her attorney and that she was advised of the
nature and range of her possible sentence," and "[t]he district court confirmed that
[the defendant] had reviewed the provisions of the plea agreement with her attorney."
United States v. Cervantes, 420 F.3d 792, 794 (8th Cir. 2005).

       As in Cervantes, Guzman entered into the plea agreement after consulting with
his attorney. Part A of the plea agreement provides that Guzman "agrees that he has
been fully advised of his statutory and constitutional rights herein, and that he has
been informed of the charges and allegations against him and the penalty therefor,
and that he understands the same." Part O of the plea agreement provides, in relevant
part:

      The Defendant hereby waives all defenses and his right to appeal any
      non-jurisdictional issues. The parties agree that excluded from this
      waiver is the Defendant's right to appeal any decision by the Court to
      depart upward pursuant to the sentencing guidelines as well as the
      length of his sentence for a determination of its substantive
      reasonableness should the Court impose an upward departure or an
      upward variance pursuant to 18 U.S.C. § 3553(a).

      At the change-of-plea hearing, the district court confirmed that Guzman had
reviewed the plea agreement with counsel prior to signing it. It also confirmed
Guzman's understanding of the appeal waiver. The court concluded that Guzman was
"aware of the nature of the charges and the consequences of the plea, and that the plea



                                         -6-
of guilty is a knowing and voluntary plea supported by an independent basis in fact
containing each of the essential elements of the offense."

       As to Guzman's withdrawal of his pro se motion to withdraw his guilty plea,
Guzman stated that his withdrawal of the motion was "knowingly, voluntarily, and
intelligently made following four meetings with counsel."

       Based on the record, we conclude "the appeal falls within the scope of the
waiver and that both the waiver and plea agreement were entered into knowingly and
voluntarily." Andis, 333 F.3d at 889–90. Furthermore, Guzman's sentence of 121
months' imprisonment falls below the statutory maximum for either possession with
intent to distribute 50 grams of pure meth or 50 grams of a meth mixture. Enforcing
the appeal waiver will not result in a miscarriage of justice. See Andis, 333 F.3d at
891.

       For the aforementioned reasons, we conclude that Guzman waived his right to
appeal whether the district court plainly erred in imposing a 121-month sentence
based on possessing with the intent to distribute 50 grams or more of pure meth where
the indictment alleged 50 grams or more of a meth mixture.

                               III. Conclusion
      Accordingly, we dismiss Guzman's appeal.
                     ______________________________




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