                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-3657
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                 Matthew St. Pierre

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

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

                           Submitted: October 15, 2018
                             Filed: January 11, 2019
                                 ____________

Before SHEPHERD, KELLY, and STRAS, Circuit Judges.
                           ____________

SHEPHERD, Circuit Judge.

       Matthew St. Pierre pled guilty to aiding and abetting second-degree murder in
violation of 18 U.S.C. §§ 2, 1111, and 1153. Pursuant to a plea agreement, the
government recommended a United States Sentencing Guidelines range of 292-365
months imprisonment. The district court1 rejected the plea agreement’s recommended
sentencing range, adopted a higher range, and sentenced St. Pierre to 480 months
imprisonment. St. Pierre appeals, contending the government breached the plea
agreement and the district court committed procedural and substantive error in
calculating his sentence. Having jurisdiction pursuant to 18 U.S.C. § 3742 and 28
U.S.C. § 1291, we conclude the government did not breach the plea agreement.
Therefore, the appeal waiver is enforceable with respect to the other claims raised
here, and we dismiss the appeal.

      G.K.I.W., a five-year-old girl, lived with her mother, Desarae Makes Him First,
and St. Pierre, her mother’s domestic partner, on the Standing Rock Sioux Indian
Reservation. On Wednesday, October 5, 2016, staff at G.K.I.W.’s elementary school
noticed the child had bruising on her face, including her cheek and forehead. When
asked what happened, G.K.I.W. said St. Pierre hit her while he was drunk. She began
crying when staff asked if she had been hurt anywhere else. A school nurse found
additional bruises on G.K.I.W.’s collarbone, and staff alerted the South Dakota
Department of Social Services Child Protection Services (DSS) and the Standing
Rock Sioux Tribe Child Protection Services (SRST-CPS). A DSS social worker
examined G.K.I.W. and found even more bruising on the child’s stomach. Though
SRST-CPS said they would respond to the claim, they did not do so before G.K.I.W.
returned home.

       The next day, school officials tried to contact SRST-CPS multiple times, but
SRST-CPS did not return their calls. Eventually, G.K.I.W.’s school called the Fort
Yates Police Department, but once again, no one responded to the call. The school
officials were particularly concerned because there would be no school the following
day (Friday) or the following Monday, and they feared for G.K.I.W.’s safety at home


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

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that long without an investigation. Despite these concerns, G.K.I.W. was allowed to
return home.

       When school resumed the following Tuesday, October 11, G.K.I.W. was
absent. Her sister said she was sick. School officials again called SRST-CPS and
again heard nothing, with the call going directly to voicemail. They also left a
message for DSS. Finally, G.K.I.W.’s school sent its own school resource officer
(SRO) to conduct a welfare check at G.K.I.W.’s home. The SRO went to Makes Him
First’s address, but Makes Him First refused to let the SRO see G.K.I.W. She said
the child became bruised by fighting with her sister and that G.K.I.W. was asleep but
would be in school the next day.

       However, around 1:30 the following morning, Makes Him First brought
G.K.I.W. to the hospital. The child was not breathing and was cold to the touch;
bruises covered most of her body, including large bruises on her chest and thigh.
Despite attempts to resuscitate G.K.I.W., she died shortly thereafter. Investigators
later determined the cause of death to be a tear in the child’s abdomen caused by
abuse to her torso.

       Makes Him First eventually admitted to investigators that she had abused
G.K.I.W. by hitting her with a shoe and punching her. She initially did not implicate
St. Pierre, and St. Pierre denied abusing the child. However, after being indicted for
the child’s death, Makes Him First described how St. Pierre abused G.K.I.W. in the
days leading up to her death. Makes Him First said that for three nights in a
row—Sunday, Monday, and Tuesday—St. Pierre entered G.K.I.W.’s room late at
night and abused the child. He accused G.K.I.W. of not sleeping before shining a
light in her face and then physically assaulting her by pulling her hair, pushing her
chest, striking her thigh, and grabbing her neck. G.K.I.W. found the injuries to her
chest particularly painful, as St. Pierre had already left bruises there by abusing her
throughout the week. Makes Him First admitted that on Tuesday, she and St. Pierre

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kept G.K.I.W. home from school because they feared getting into trouble if school
staff noticed that G.K.I.W. was covered in bruises. She stated the abuse escalated
throughout the week; by Tuesday night, St. Pierre was picking G.K.I.W. up by the
neck and choking her repeatedly until she blacked out. Makes Him First said she
began crying and begging St. Pierre to stop hurting the child, but he ignored her. At
one point, St. Pierre held G.K.I.W. by the neck and shook her so severely that when
he put her back down, she could not stand. G.K.I.W.’s speech then became
unintelligible, and she began to behave strangely. Makes Him First asked to give the
child a bath. St. Pierre poured water onto the child’s face, and Makes Him First
demanded they go to the hospital. G.K.I.W. turned pale, and her breathing shallowed.
She began to foam at the mouth. Makes Him First attempted to assist the child’s
breathing while St. Pierre started the car. On the way to the hospital, St. Pierre told
Makes Him First that he would not go to prison for her child, and she needed to come
up with a lie to explain the child’s injuries. Makes Him First explained she initially
lied to investigators out of her fear of St. Pierre.

       When investigators interviewed other household members, they heard
repeatedly that St. Pierre had a violent anger problem. In the days before the murder,
one person asked St. Pierre and Makes Him First about G.K.I.W.’s frequent crying,
and the couple said the child simply woke up that way. Another person had been told
that St. Pierre had once pushed G.K.I.W. into a wall. On the day G.K.I.W. died, a
witness stated St. Pierre and Makes Him First acted strangely, appearing more
nervous than sad and whispering to one another. In November 2016, the government
indicted St. Pierre as Makes Him First’s co-defendant.

      St. Pierre eventually pled guilty to aiding and abetting second-degree murder.
The plea agreement recommended a sentencing range of 292-365 months
imprisonment. The parties agreed the base offense level was 38 but agreed to a
two-point enhancement for a vulnerable victim pursuant to United States Sentencing
Commission, Guidelines Manual, § 3A1.1(b) and a three-point reduction for timely

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acceptance of responsibility pursuant to USSG § 3E1.1, resulting in a total offense
level of 37. They also agreed that St. Pierre’s criminal history category was IV. St.
Pierre waived his right to appeal on most grounds. The plea agreement expressly
stated that its recommendations were not binding on the district court, and if the
district court rejected its proposals, St. Pierre could not withdraw his plea. At his
change-of-plea hearing, St. Pierre stated he understood that the court would determine
his actual advisory Guidelines range and that it was not bound by the plea
agreement’s recommendation. He further said that he understood his appellate waiver
would cover the majority of grounds on which he could raise an appeal.

       The presentence investigation report (PSR) prepared for St. Pierre’s sentencing
hearing recommended a sentencing range of 360 months to life imprisonment. In
arriving at a total offense level of 41, the PSR included an enhancement for
obstruction of justice pursuant to USSG § 3C1.1, to which St. Pierre objected. The
probation officer who wrote the report filed an amended PSR and addendum in
response to St. Pierre’s objections. The addendum defended the obstruction of justice
enhancement by noting Makes Him First testified that St. Pierre told her to lie about
what happened to G.K.I.W. At the sentencing hearing, the government stated that it
“adopt[ed]” the amended report and addendum but that it was “not asking the Court
to go above” the stipulated sentencing range. As outlined in the plea agreement, the
government asked the district court to grant St. Pierre a three-point reduction for
timely acceptance of responsibility and joined in St. Pierre’s motion for a downward
departure or variance to reach the plea agreement’s sentencing range.

       The district court declined to follow the plea agreement’s recommendations.
It found that St. Pierre’s acceptance of responsibility was not timely and agreed with
the PSR addendum that an obstruction of justice enhancement was appropriate. The
district court stated that the prolonged and severe nature of the abuse against
G.K.I.W. made this case unlike any it had seen. It adopted the PSR’s recommended
sentencing range and sentenced St. Pierre to 480 months imprisonment. St. Pierre

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appeals, contending the government breached the plea agreement by adopting the
PSR addendum and that the district court committed procedural and substantive error
in deciding his sentence.

        We first determine whether the government breached the plea agreement such
that St. Pierre may appeal. “We review questions regarding the interpretation and
enforcement of plea agreements de novo.” United States v. Mosley, 505 F.3d 804,
808 (8th Cir. 2007). “If the government breached the plea agreement,” St. Pierre may
proceed with his appeal “despite the appellate waiver.” United States v. Quebedo,
788 F.3d 768, 775 (8th Cir. 2015). “[I]n determining whether the government has
fulfilled its obligations under a plea agreement, we look to the agreement’s
provisions.” United States v. Kramer, 12 F.3d 130, 131 (8th Cir. 1993) (citing United
States v. Coleman, 895 F.2d 501, 505 (8th Cir. 1990)). If the government “actively
advocate[s] for an outcome different from the one it had promised” to seek, it
breaches the plea agreement. United States v. Fowler, 445 F.3d 1035, 1038 (8th Cir.
2006). In United States v. Thompson, the parties’ plea agreement applied a specific
Guidelines section for possession of a firearm, but after the PSR used the more severe
felonious assault section, the prosecutor accepted its recommendation out of “an
obligation to advise the Court of what the facts are.” 403 F.3d 1037, 1039 (8th Cir.
2005). Without being prompted by the court, the prosecutor argued that the facts to
which Thompson had stipulated supported felonious assault. Id. at 1038, 1040. The
court held that the prosecutor had, “[i]n essence,” argued against the plea agreement
provision and therefore breached the agreement. Id. at 1040-41.

       In St. Pierre’s plea agreement, the government agreed to recommend a sentence
of 292-365 months imprisonment. The agreement made no mention of an obstruction
of justice enhancement and did not require that the government join in any of St.
Pierre’s objections to the PSR. At sentencing, the government repeatedly requested
a sentence within the agreed-upon range. And, unlike in Thompson, when St. Pierre
objected to the obstruction-of-justice enhancement in the PSR, the government did

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not argue that the facts supported the enhancement; it merely said “there is evidence
there” and immediately emphasized its request for a downward departure or variance
to reach the agreed-upon sentencing range. To be sure, as St. Pierre suggests, the
government could have simply not addressed the obstruction enhancement at all, and
the government’s statement that it “adopt[ed]” the amended PSR and addendum
seems, on its face, to indicate agreement with it. However, viewed in context, the
government’s chosen course did not constitute breach. Rather, the government
advocated for the 292-365 month sentencing range outlined in the plea agreement no
less than six times at sentencing, including in its discussion of the PSR addendum.
Because the government promised to recommend a sentence within the agreed-upon
Guidelines range and consistently did so, it did not breach the plea agreement.

      Having found the plea agreement enforceable, we turn to whether St. Pierre
waived his right to appeal. “Whether a valid waiver of appellate rights occurred is
a question of law that we will review de novo.” United States v. Sisco, 576 F.3d 791,
795 (8th Cir. 2009). “When reviewing a purported waiver, we must confirm that the
appeal falls within the scope of the waiver and that both the waiver and the plea
agreement were entered into knowingly and voluntarily.” United States v. Andis, 333
F.3d 886, 889-90 (8th Cir. 2003) (en banc). We will not “enforce an otherwise valid
waiver if to do so would result in a miscarriage of justice.” Id. at 891.

       First, St. Pierre’s appeal must fall within the scope of his waiver. Under the
plea agreement, St. Pierre waived “his right to appeal any non-jurisdictional issues.”
The parties excluded from the waiver instances in which the district court departed
or varied upward. Because St. Pierre’s appeal does not raise a jurisdictional issue and
the district court did not impose an upward departure or upward variance from the
360 months to life imprisonment sentencing range it adopted, this appeal falls within
the scope of the waiver.




                                         -7-
       Second, the waiver and plea agreement must have been entered into knowingly
and voluntarily. “[A] district court can help ensure that a plea agreement and
corresponding waiver are entered into knowingly and voluntarily [by] properly
question[ing] a defendant about his or her decision to enter that agreement and waive
the right to appeal.” Id. at 890-91. Here, the district court did exactly that. At St.
Pierre’s change-of-plea hearing, it cautioned, “[I]f you don’t like what I do in your
case . . ., you have no place to go. You cannot go to the Court of Appeals in St.
Louis, Missouri, and you cannot go to the United States Supreme Court.” While
noting that St. Pierre could still appeal a sentence that varied or departed upward, the
district court emphasized that that was an “exception” to St. Pierre’s broad appellate
waiver, saying, “[I]f 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,
sir?” St. Pierre responded, “Yes, sir.” The district court then verified that no one had
threatened or coerced St. Pierre into pleading guilty and that St. Pierre would enter
his plea “voluntarily on [his] part and of [his] own free will.” Thus, the record
indicates that St. Pierre entered into the plea agreement knowingly and voluntarily.

       Finally, enforcing the waiver must not result in a miscarriage of justice. “[T]his
exception is a narrow one,” principally allowing the appeal of illegal sentences that
are greater than the maximum statutory penalty. Id. at 891-92. In contrast, “an
allegation that the sentencing judge misapplied the Sentencing Guidelines or abused
his or her discretion is not subject to appeal in the face of a valid appeal waiver.” Id.
at 892. Because St. Pierre’s appeal is grounded in alleged errors by the district court
in applying the Sentencing Guidelines, no miscarriage of justice occurs in enforcing
the appellate waiver. Therefore, the waiver is valid and enforceable.

       Even if we considered the merits of St. Pierre’s arguments alleging procedural
and substantive error, we would affirm the sentence of the district court. See United
States v. Cook, 252 F. App’x 114, 115 (8th Cir. 2007) (per curiam). When reviewing
the sentence of a district court, we first affirm the absence of significant procedural

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error, such as failing to consider the 18 U.S.C. § 3553(a) factors. Gall v. United
States, 552 U.S. 38, 51 (2007). This does not require “‘robotic incantations’ that each
statutory factor has been considered.” United States v. Lamoreaux, 422 F.3d 750,
756 (8th Cir. 2005) (quoting United States v. Crosby, 397 F.3d 103, 113 (2d Cir.
2005)). Rather, “all that is generally required to satisfy the appellate court is evidence
that the district court was aware of the relevant factors.” United States v. Perkins,
526 F.3d 1107, 1110 (8th Cir. 2008).

       St. Pierre contends that the district court committed procedural error by failing
to consider the disparity between his sentence and the sentences imposed on similar
defendants. However, the district court explicitly discussed similar cases cited by St.
Pierre and described St. Pierre’s case as “far from” those examples, saying, “I have
never seen such a case as this in the 22-plus years I have sat on the bench, the cruelty
day in and day out.” Because the district court appropriately considered the
sentencing factors, it did not commit significant procedural error.

       After confirming the absence of procedural error, we examine the substantive
reasonableness of the sentence, using a “deferential abuse-of-discretion standard.”
Gall, 552 U.S. at 41, 51. A district court abuses its discretion only if it “fails to
consider a relevant factor that should have received significant weight;” “gives
significant weight to an improper or irrelevant factor;” or “commits a clear error of
judgment” in weighing the proper factors. United States v. Feemster, 572 F.3d 455,
461 (8th Cir. 2009) (en banc) (quoting United States v. Kane, 552 F.3d 748, 752 (8th
Cir. 2009)). A sentence within the Guidelines range is presumptively reasonable, and
“it will be the unusual case when we reverse a district court sentence—whether
within, above, or below the applicable Guidelines range—as substantively
unreasonable.” Id. at 464 (quoting United States v. Gardellini, 545 F.3d 1089, 1090
(D.C. Cir. 2008)). The “district court has wide latitude to weigh the § 3553(a) factors
in each case and assign some factors greater weight than others in determining an
appropriate sentence.” United States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009).

                                           -9-
       Here, St. Pierre’s sentence was within the Guidelines range calculated by the
district court and is presumptively reasonable. The district court clearly considered
sentence disparity, and it had “wide latitude” to assign great weight to the
circumstances of the case and to emphasize the abuse G.K.I.W. had suffered. Id. at
379. Therefore, the district court did not abuse its discretion in imposing St. Pierre’s
sentence, and we would affirm the district court’s judgment even absent the appellate
waiver.

     Because the government did not breach the plea agreement and St. Pierre
waived his ability to appeal on these grounds, we dismiss the appeal.

STRAS, Circuit Judge, concurring in part and concurring in the judgment.

       I agree with the court’s explanation of why St. Pierre’s appeal waiver requires
us to dismiss his appeal, but I would end the opinion there. Once we dismiss St.
Pierre’s appeal, there is nothing left to do. To proceed further and address the
underlying merits, as the court does, both defeats the appeal waiver and is at odds
with the judgment, which is to dismiss rather than affirm. Accordingly, I join the
court’s opinion except its unnecessary discussion of the merits of St. Pierre’s appeal.
                        ______________________________




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