                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1645
                                   ___________

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * District of Minnesota.
Robert Lee Spencer,                   *
                                      *    [UNPUBLISHED]
            Defendant-Appellant.      *
                                 ___________

                             Submitted: December 13, 2004
                                Filed: December 23, 2004
                                 ___________

Before WOLLMAN, LAY, and COLLOTON, Circuit Judges.
                          ___________

PER CURIAM.

       Robert Lee Spencer pled guilty to one count of Possession of a Firearm by a
Convicted Felon and one count of Possession of Ammunition by a Convicted Felon
under 18 U.S.C. § 922(g). Because Spencer had two prior convictions for violent
felonies and one prior conviction for a serious drug offense, he was sentenced to the
statutory minimum of fifteen years pursuant to 18 U.S.C. § 924 (e). He now appeals
the denial of his motion to withdraw his guilty plea, appeals the denial of his motion
to suppress, and appeals his sentence. We affirm the district court.1

      1
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota, presiding.
                                     Background

       After police executed a search warrant on the Defendant’s apartment in search
of drugs, money, firearms, and gang-related information, Spencer filed a motion to
suppress all evidence from the search arguing the warrant was constitutionally infirm
for lack of probable cause. The district court, adopting the magistrate judge’s2
recommendation, denied the Defendant’s motion to suppress. Defendant then
negotiated a plea agreement with the Government that, inter alia, waived his right to
appeal in exchange for the Government’s recommendation of a sentence not
exceeding the statutory minimum of fifteen years. Prior to accepting the Defendant’s
guilty plea, the district court asked the Defendant several questions to verify that he
had entered into the plea agreement knowingly and voluntarily, and that he
understood the consequences of waiving his rights. Specifically, the district court
asked the Defendant if he understood that he would face a minimum fifteen-year
sentence as an armed career criminal. The Defendant indicated that he understood
and asked to be immediately sentenced. The district court declined and ordered a Pre-
Sentence Report.

       After entering his guilty plea but prior to sentencing, the Defendant filed a pro
se motion seeking to withdraw his guilty plea based on ineffective assistance of
counsel. The district court appointed new counsel and held an evidentiary hearing
to entertain the Defendant’s motion. Finding that there was no fair and just reason
to allow the Defendant to withdraw his unconditional guilty plea, the district court
denied his motion and sentenced the Defendant to fifteen years imprisonment. This
appeal followed.




      2
       The Honorable Susan Richard Nelson, United Sates Magistrate Judge for the
District of Minnesota, presiding.

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                                      Analysis

        “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.” United States v. Andis, 333 F.3d 886, 889-
90 (8th Cir. 2003) (en banc), cert. denied, 124 S. Ct. 501 (2003). “Assuming that a
waiver has been entered into knowingly and voluntarily, we will still refuse to enforce
an otherwise valid waiver if to do so would result in a miscarriage of justice.” Id. at
891. A purported waiver may not be “knowing and voluntary” when the waiver itself
is tainted by ineffective assistance of counsel, DeRoo v. United States, 223 F.3d 919,
924 (8th Cir. 2000), and enforcement of a waiver may result in a “miscarriage of
justice” if it prevents a defendant from appealing an illegal sentence, United States
v. Michelsen, 141 F.3d 867, 872 (8th Cir. 1998).

       In the Defendant’s plea agreement, he waived his right to pursue his pretrial
motion to suppress evidence from the search, his right to appeal his sentence, and his
right to post-conviction relief under 28 U.S.C. § 2255. The Defendant did not waive
his right to appeal denial of his motion to withdraw his guilty plea. Andis instructs
that we not review the merits of validly waived issues of appeal. 333 F.3d at 892.
Consistent with Andis, once we conclude the Defendant’s plea agreement containing
the waiver was knowing and voluntary, we will not examine the merits of
Defendant’s issue of appeal regarding denial of his motion to suppress. However, for
a waiver of the right to appeal a sentence to be valid, the sentence must comply with
the terms of the agreement and otherwise be legal in addition to being knowing and
voluntary. Id. at 892. Since the Defendant’s plea agreement did not waive his right
to directly appeal denial of his motion to withdraw his guilty plea, we face no barrier
to addressing the merits of this issue of appeal.




                                         -3-
                         Knowing and Voluntary Waiver

      A decision to enter into a plea agreement cannot be knowing and voluntary
when the plea agreement itself is the result of advice that falls below the range of
competence for attorneys in criminal cases. DeRoo, 223 F.3d at 924 (citations
omitted). An “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 . . . .” Andis,
333 F.3d at 890-91.

       The Defendant claims his appointed counsel failed to adequately explain the
consequences of entering the guilty plea. The Defendant argues that, had he known
that he faced a minimum fifteen-year sentence under the plea agreement, he would
not have pled guilty.

       Other than vague and unsubstantiated accusations, the Defendant has not
produced any evidence showing his counsel was ineffective, that his counsel failed
to explain the agreement to him, or that the Defendant did not understand the plea
agreement. Even if we were to assume that Defendant’s counsel failed to explain the
agreement to the Defendant, this error did not prejudice the Defendant because the
district court, prior to accepting the Defendant’s guilty plea, specifically questioned
him to ensure he understood the agreement and the fifteen-year minimum sentence.
Accordingly, we find that the Defendant did not suffer ineffective assistance of
counsel and, therefore, entered into the plea agreement knowingly and voluntarily.

                           Denial of Motion to Suppress

      We hold the Defendant knowingly and voluntarily waived his right to appeal
the denial of his motion to suppress. Accordingly, we dismiss this issue of the
Defendant’s appeal without reaching the underlying merits. Id. at 892.

                                         -4-
                                Illegality of Sentence

       A “defendant has the right to appeal an illegal sentence, even though there
exists an otherwise valid waiver.” Id. at 891-92. “[T]he illegal sentence exception
to general enforceability of an appeal waiver is an extremely narrow exception. Any
sentence imposed within the statutory range is not subject to appeal.” Id. at 892.

       Defendant argues that his sentence is illegal because one or more of his three
prior convictions did not satisfy the requirements of 18 U.S.C. § 924(e). We disagree.
Defendant has a 1968 conviction for Burglary with Intent to Commit Theft, a 1970
conviction for Murder, and a 1999 conviction for Third Degree Possession of Cocaine
with Intent to Sell. The first two convictions qualify as a “violent felony” under
§ 924(e)(2)(B), and the last conviction qualifies as a “serious drug offense” under
§ 924(e)(2)(A). Because the three prior convictions qualify the Defendant for the
fifteen-year minimum sentence under § 924(e), we find that the sentence is within the
terms of the plea agreement and is otherwise legal.

       Finding the Defendant knowingly and voluntarily waived his right to appeal
his sentence, we dismiss this issue of the Defendant’s appeal.

                             Withdrawal of Guilty Plea

       Lastly, the Defendant argues that the district court abused its discretion when
it denied his motion to withdraw his guilty plea. The Defendant bears the burden of
proving an appropriate basis to support a withdrawal of his guilty plea. United States
v. Prior, 107 F.3d 654, 657 (8th Cir. 1997). “A defendant may withdraw a plea of
guilty . . . after the court accepts the plea, but before it imposes sentence if . . . the
defendant can show a fair and just reason for requesting the withdrawal.” FED. R.
CRIM. P. 11(d)(2). The district court’s denial of a motion to withdraw a plea is



                                           -5-
reviewed for abuse of discretion. United States v. Morales, 120 F.3d 744, 747 (8th
Cir. 1997).

       According to the Defendant, he suffered ineffective assistance of counsel in the
negotiations and entry of his guilty plea, and thus can show a fair and just ground to
withdraw his guilty plea. Since we have already held that the Defendant has failed
to demonstrate ineffective assistance of counsel, it follows his claim of ineffective
assistance of counsel cannot provide a basis of showing a fair and just reason to
withdraw his guilty plea. We therefore hold that the district court did not abuse its
discretion when it denied the Defendant’s motion to withdraw his plea, and affirm the
district court’s denial of Defendant’s motion to withdraw his guilty plea.

      The district court is AFFIRMED.
                       ______________________________




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