                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    _________
                                    No. 02-2350
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
Norman C. Blue Coat, Jr.,                *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: December 10, 2002

                                   Filed: August 14, 2003
                                    ___________

Before WOLLMAN, GIBSON, and MELLOY, Circuit Judges.
                          ___________

MELLOY, Circuit Judge.

      In this appeal, appellant contends that the district court1 improperly required
him to register as a sexual-offender as a special condition of his supervised release.
On appeal, appellant argues that because he pled guilty only to burglary, instead of
a sex-offense, the imposition of this requirement constitutes an illegal sentence.
Because we find that the defendant entered into a valid waiver of his appellate rights,
we dismiss his appeal.

      1
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
                                   I. Background

       On October 16, 2001, Norman C. Blue Coat entered the home of a young girl,
went into her bedroom, and attempted to sexually assault her. He was caught by the
girl’s mother and subdued by other individuals until the police arrived. After being
arrested and transported to prison, Mr. Blue Coat allegedly tried to sexually assault
another inmate. Additionally, Mr. Blue Coat was suspected of forcibly raping his
female cousin fifteen months prior to this incident.

       On December 12, 2001, a grand jury indicted Mr. Blue Coat on four counts
related to the October 16, 2001, incidents. Count I of the indictment charged him
with First Degree Burglary in violation of 18 U.S.C. § 1153 and South Dakota
Codified Law § 22-32-1. Count II charged him with abusive sexual contact in
violation of 18 U.S.C. §§ 1153, 2244(a)(2), 2242(2), and 2246 (3). Count III charged
him with sexual contact with a child between the ages of 12 and 15 in violation of 18
U.S.C. §§ 1153, 2244(a)(3), 2243(a), and 2246 (3). Count IV charged him with the
attempted sexual assault on his fellow inmate in violation of 18 U.S.C. §§ 1153,
2242(2), and 2246 (2).

       On January 25, 2002, Mr. Blue Coat entered into a plea agreement with the
government. In exchange for the government dismissing Counts II-IV of the
indictment and agreeing not to prosecute him for the alleged rape of his cousin, Mr.
Blue Coat pled guilty to Count I – First Degree Burglary. As part of the plea
agreement, he waived most of his appellate rights. The district court then sentenced
him to fifty-seven months in prison and three years of supervised release. As a
special condition of his supervised release, the district court required Mr. Blue Coat
to register as a sex-offender.

       On appeal, Mr. Blue Coat argues that notwithstanding this waiver, he retained
the right to appeal an illegal sentence. In this case, he claims the requirement that

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he register as a sex-offender constitutes such an illegal sentence. The government
argues that this condition is not illegal and that Mr. Blue Coat’s appeal should be
dismissed because of the valid waiver.

                                      Discussion

       The Eighth Circuit recently explained in United States v. Andis, No. 01-1272
(8th Cir. June 27, 2003) (en banc), that valid waivers of appellate rights are generally
enforceable. Andis, slip op. at 4. In analyzing whether a waiver prohibits an appeal,
the first step is to determine the waiver’s scope. Id. at 5-6. In this case, Mr. Blue
Coat’s waiver stated:

      WAIVER OF DEFENSES AND APPELLATE RIGHTS: Defendant
      hereby waives any right to appeal any and all motions, defenses,
      probable cause determinations, and objections which Defendant has
      asserted or could assert to this prosecution, and the Court’s entry of
      judgment against Defendant and imposition of sentence, including
      sentence appeals under 18 U.S.C. § 3742. The Defendant may appeal
      any sentence which is a departure up from the guideline range and the
      United States may appeal any sentence which is a departure below the
      guideline range.

This waiver clearly limits Mr. Blue Coat’s appellate rights. The only appellate right
he retained was the right to appeal a “departure up from the guideline range.” Thus,
his waiver would prevent him from appealing the conditions of his supervised release.
See Andis, slip op. at 10 n.7 (describing how conditions of supervised release are
considered a part of a defendant’s sentence).

      Since the waiver would prohibit Mr. Blue Coat’s appeal, we must determine
whether it was entered into knowingly and voluntarily. Id. at 6-8. Mr. Blue Coat has
not argued that he entered into the waiver unknowingly or involuntarily.
Additionally, in accepting Mr. Blue Coat’s plea agreement and change of plea, the

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district court carefully discussed the waiver to make sure Mr. Blue Coat understood
its significance. See Transcript for Change of Plea Hearing, February 5, 2002, pages
8-9.2 Finally, we note that the agreement waived both parties’ rights, reserving for
the government only the right to appeal “a departure below the guideline range.” All



      2
       In fact, the district court conducted a very helpful discussion with the
defendant regarding the impact of the waiver on Mr. Blue Coat’s appellate rights.
The relevant portions of that discussion are as follows:

      Q. Now, you have kept the right to appeal an upward departure, in other
      words, if I sentence you to a more severe penalty than that called for by
      the Federal Sentencing Guideline range, you understand that?

      A. Yes.

      Q. The problem however, for you and the danger to you in that regard
      is that neither you nor Mr. Albright [,your attorney,] know for sure at
      this time what that guideline range is, and therefore, you are still taking
      your chances in that regard. Do you understand that?

      A. Yes

      Q. Now, other than keeping that right, you have given up all rights to
      appeal. In other words, if you don’t like what I do in your case as to the
      facts or the law or in general what your sentence is, you have no place
      to go. You cannot go to the Court of Appeals in St. Louis, Missouri and
      you cannot go to the U.S. Supreme Court. You would be stuck with
      what I do, right or wrong in your case, and of course judges, like anyone
      else, make mistakes, and if I make a mistake in your case and you don’t
      like it, you are stuck with it and so you are giving up very valuable
      rights. Do you understand all of that?

      A. Yes


                                         -4-
of these facts lead to the conclusion that Mr. Blue Coat knowingly and voluntarily
waived his appellate rights.

      Since Mr. Blue Coat knowingly and voluntarily entered into a waiver of his
appellate rights, and the special conditions of his supervised release were covered by
that waiver, we will dismiss his appeal unless our failure to do so would constitute
a miscarriage of justice. Andis, slip op. at 8. As we discussed in Andis, the
miscarriage of justice exception is a very narrow exception to the general rule that
waivers of appellate rights are enforceable. Id. at 9.

       Mr. Blue Coat attempts to invoke the miscarriage of justice exception by
claiming that the conditions of his supervised release constitute an illegal sentence.
Although the miscarriage of justice exception allows this court to hear appeals of
illegal sentences, even where an otherwise valid waiver exists, the conditions of
supervised release imposed by a district court do not fall within this narrow
exception, unless the conditions “were based on some other constitutionally
impermissible factor . . . .” Andis, slip op. at 12-13.

       The defendant in Andis also claimed that the conditions of his supervised
release constituted an illegal sentence. Id. at 2. In Andis, we stated that a general
waiver of appellate rights “prevents this Court from reviewing the conditions of [a
defendant’s] supervised release and determining whether the district court abused its
discretion in imposing those conditions.” Id. at 12. Since Mr. Blue Coat has not
alleged any other circumstances surrounding the imposition of his sentence that
would fall within the miscarriage of justice exception, we find this case
indistinguishable from Andis and dismiss Mr. Blue Coat’s appeal.




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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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