                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3865
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Hilda Cervantes,                        *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: June 21, 2005
                                Filed: August 24, 2005
                                 ___________

Before RILEY, BOWMAN, and BENTON, Circuit Judges.
                           ___________

BOWMAN, Circuit Judge.

      Hilda Cervantes pleaded guilty to one misdemeanor count of making a false
statement with intent to defraud the United States Department of Housing and Urban
Development (HUD). See 18 U.S.C. § 1012 (2000). The District Court1 ordered

      1
        The Honorable Franklin L. Noel, United States Magistrate Judge for the
District of Minnesota. See 28 U.S.C. § 636(a)(5) (2000) (authorizing United States
magistrate judges, with the consent of the parties, to sentence offenders who have
committed class A misdemeanors). The offense to which Cervantes pleaded guilty
is a class A misdemeanor. See 18 U.S.C. §§ 1012, 3559(a)(6) (2000). Though the
consent of the parties does not expressly appear in the record on appeal, § 636(a)(5)
does not require the consent to be in writing. The docket entries show that the case
Cervantes to pay more than $20,000 in restitution to HUD, sentenced her to five years
of probation, and imposed a condition of probation requiring her submission to
mandatory drug testing. Cervantes appeals the imposition of mandatory drug testing
as a condition of her probation. Because Cervantes's appeal is barred by the language
of the appeal waiver contained in her plea agreement, her appeal is dismissed.

       The facts of this case are remarkably similar to United States v. Andis, in which
we held that a defendant whose plea agreement contained a valid appeal waiver could
not appeal his conditions of supervised release. 333 F.3d 886, 888 (8th Cir.)
(en banc), cert. denied, 540 U.S. 997 (2003). In Andis, we determined that a waiver
of appeal is enforceable if (1) the appeal sought is within the scope of the waiver, (2)
the waiver was knowing and voluntary, and (3) the enforcement of the waiver will not
result in a miscarriage of justice. Id. at 889–90. Cervantes's appellate brief does not
address the appeal waiver contained in her plea agreement, so there is no contention
that the waiver is unenforceable. To the contrary, a review of the record compels the
conclusion that her appeal waiver must be enforced.

       Cervantes's plea agreement states that she waived "any right to raise on appeal
or collaterally attack any matter pertaining to this prosecution and sentence if the
sentence imposed is consistent with the terms of this agreement." Plea Agreement at


was assigned to Judge Noel ab initio, all the proceedings were conducted by him, and
no objection ever was made, either in the District Court or on appeal, to his role as
the sentencing judge. We find no reason for doubting that the consent of the parties
was given, either expressly or by clear implication, to his serving as the sentencing
judge. We urge counsel in future cases to assist the Court by affirmatively pointing
out in their appellate briefs whether or not the requisite consent was in fact given
where a magistrate judge performs the sentencing function under 28 U.S.C.
§ 636(a)(5) (2000), and by including in the record on appeal the material that shows
such consent. Because the question of consent vel non is jurisdictional, and we have
an independent duty to make sure we have jurisdiction, litigants and magistrate
judges should not brush over the matter lightly.

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8, ¶ 7(a). The plea agreement specifies that if Cervantes is not in custody, she "shall
comply with all terms and conditions of her release." Id. at 4, ¶ 2(k) (emphasis
added). The plea agreement also recognizes that conditions of probation might be
imposed at sentencing. Id. at 12. Thus, the conditions of probation imposed at
sentencing are consistent with the terms of Cervantes's plea agreement and,
consequently, fall within the scope of her appeal waiver.

       Further, Cervantes's plea agreement states that her guilty plea was "voluntary"
and not coerced. Id. The agreement also states that Cervantes discussed the case and
her rights with her attorney and that she was advised of the nature and range of her
possible sentence. Id. at 11. The District Court confirmed that Cervantes had
reviewed the provisions of the plea agreement with her attorney, Change of Plea Hr'g
Tr. at 16, 19, and the court confirmed Cervantes's intent to waive any appeal of her
sentence, id. at 24–25; see also Sent. Tr. at 12. The appeal waiver in her plea
agreement was therefore knowing and voluntary.

       Cervantes argues that the condition of probation requiring her submission to
mandatory drug testing is a greater deprivation of her liberty than is reasonably
necessary because the condition is unrelated to her offense or personal history. Even
construing this as a challenge to her appeal waiver—i.e., that as a result of the
enforcement of her appeal waiver, the imposition of the probation condition will
constitute a miscarriage of justice—her argument is foreclosed by Andis. The
appellant in Andis claimed that the conditions of his supervised release constituted
an "illegal sentence," 333 F.3d at 893, because those conditions were imposed
without regard to the specific characteristics of his crime. Andis argued that the
imposition of the allegedly illegal sentence would result in a miscarriage of justice,
thereby rendering his appeal waiver unenforceable. We rejected Andis's illegal-
sentence argument because his conditions of supervised release were authorized by
statute and were not based on a constitutionally impermissible factor. Id. at 893–94.



                                         -3-
Consequently, we held that the enforcement of Andis's appeal waiver would not result
in a miscarriage of justice.

       There is little reason to distinguish between the supervised-release conditions
at issue in Andis and the probation condition at issue here, except to note that
periodic drug testing is a mandatory condition of probation, see 18 U.S.C.
§ 3563(a)(5) (2000); U.S. Sentencing Guidelines Manual § 5B1.3(a)(5) (2003); see
also United States v. Cooper, 171 F.3d 582, 587 (8th Cir. 1999) (citing 18 U.S.C.
§ 3563 (a)(5)). There is no allegation that the conditions of Cervantes's probation are
based on a constitutionally impermissible factor. In summary, Cervantes's appeal is
within the scope of her appeal waiver, her waiver was knowing and voluntary, and
the enforcement of that waiver will result in no miscarriage of justice. We therefore
enforce the waiver of appeal contained in Cervantes's plea agreement.

       Further, were we to consider Cervantes's appeal, we would reject her argument
on its merits. Absent her appeal waiver, we would review the imposition of the
probation condition for abuse of discretion. See Andis, 333 F.3d at 893. Cervantes
argues that requiring periodic drug testing deprives her of more liberty than is
reasonably necessary because it is unrelated to her offense or personal history. But
only those conditions of probation labeled by statute as "Discretionary" must be
tailored to ensure they deprive no more liberty than reasonably necessary. 18 U.S.C.
§ 3563(b) (2000).2 Again, periodic drug testing is a "Mandatory" condition of
probation, id. § 3563(a); U.S. Sentencing Guidelines Manual § 5B1.3(a)(5) (2003),




      2
       One must keep in mind the "threefold imperative" of statutory interpretation
taught by Justice Felix Frankfurter as a professor at Harvard Law School before he
took the bench: "(1) Read the statute; (2) read the statute; (3) read the statute!" In re
England, 375 F.3d 1169, 1182 (D.C. Cir. 2004) (quoting Henry J. Friendly,
Benchmarks 202 (1967)), cert. denied, 125 S. Ct. 1343 (2005).

                                          -4-
to which the aforementioned statutory constraint does not apply.3 And although the
court had discretion to ameliorate or suspend the mandatory drug-testing condition
if Cervantes posed a low risk of future substance abuse, 18 U.S.C. § 3563(a); U.S.
Sentencing Guidelines Manual § 5B1.3(a)(5), the court did not abuse its discretion
by declining to do so.

       Cervantes did not dispute the facts contained in the Presentence Investigation
Report (PSR), and therefore she is deemed to have admitted those facts for purposes
of sentencing. United States v. McCully, 407 F.3d 931, 933 (8th Cir. 2005) (citing
Fed. R. Crim. P. 32(i)(3)). The PSR stated that Cervantes "began using
methamphetamine recreationally in 1999," that "[h]er use of methamphetamine
increased to ½ gram twice per week," and that such use continued "until February
2003." PSR at 6, ¶ 36. Even though Cervantes stopped using methamphetamine a
year prior to sentencing, see id., and tested negative for drugs during pretrial release,
she has a relatively recent history of substance abuse. Moreover, the District Court
found that Cervantes had no assets and only limited income. Change of Plea H'rg at
6–8. Given Cervantes's history of substance abuse and her limited means, drug
testing is appropriate and related to ensuring she will make full restitution to HUD,


      3
        The cases on which Cervantes relies are distinguishable because they concern
discretionary conditions of supervised release that are indeed subject to the statutory
constraint that Cervantes seeks to impose on her mandatory condition of probation.
See, e.g., United States v. Scott, 270 F.3d 632, 634–35 (8th Cir. 2001) (discretionary
conditions for sex offenders); United States v. Kent, 209 F.3d 1073, 1074 (8th Cir.
2000) (discretionary conditions imposing psychological/psychiatric counseling);
United States v. Bass, 121 F.3d 1218, 1223 (8th Cir. 1997) (discretionary conditions
restricting possession or use of alcohol, authorizing tests for alcohol in body fluids,
and authorizing warrantless search and seizure of alcohol in residence and vehicles).
We also note that the court's judgment form for Cervantes, which lists drug testing
as one of six "Special Conditions of Probation," Judgment at 3 (citing 18 U.S.C.
§ 3563(a)), rather than as a "Standard" condition, id. at 2, does not alter the statutorily
mandated nature of the probation condition.

                                           -5-
which the District Court indicated was an important goal of her five-year term of
probation. See Sent. Tr. at 6–11. It was not an abuse of the District Court's discretion
to leave the mandatory drug-testing condition in place.

      To sum up, if Cervantes had not waived her right to appeal her sentence, her
appeal would be meritless and the sentence would be affirmed. But because
Cervantes waived the right to appeal her sentence, her appeal is dismissed.
                      ______________________________




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