United States v. Michael Nunn , 134 F. App'x 101 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1364
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Southern
v. * District of Iowa.
*
Michael J. Nunn, * [UNPUBLISHED]
*
Appellant. *
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Submitted: May 24, 2005
Filed: May 31, 2005
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Before SMITH, FAGG, and MAGILL, Circuit Judges.
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PER CURIAM.
Michael J. Nunn appeals the sentence the district court* imposed after Nunn
pleaded guilty to conspiring to distribute cocaine. In a written agreement, Nunn
agreed to waive his right to appeal his conviction and sentence, unless (1) this court
or the United States Supreme Court later found the substantive basis of Nunn’s guilty
plea and resulting conviction failed to state a crime upon which he could be
convicted, or (2) an issue of law was brought to the district court’s attention at
*
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
sentencing and the court agreed further review was needed. The government has
moved to dismiss the appeal based on Nunn’s appeal waiver.
We conclude the waiver should be enforced. See United States v. Andis, 333
F.3d 886, 889-92 (8th Cir.) (en banc) (court should enforce appeal waiver and dismiss
appeal where it falls within scope of waiver, plea agreement and waiver provision
were entered into knowingly and voluntarily, and no miscarriage of justice would
result), cert. denied, 540 U.S. 997 (2003).
First, all of the issues appealed, including any issues under United States v.
Booker, 125 S. Ct. 738 (2005), fall within the scope of the appeal waiver. The record
reveals the district court did not agree appellate review was needed for any legal issue
brought to the court’s attention, and neither this court nor the Supreme Court has
found the substantive basis of Nunn’s guilty plea failed to state a crime. See United
States v. Killgo, 397 F.3d 628, 629 n.2 (8th Cir. 2005) (enforcing appeal waiver, even
though defendant did not anticipate subsequent Supreme Court rulings, where
defendant agreed to waive right to appeal “any sentence imposed” except “any issues
solely involving a matter of law brought to the court’s attention at the time of
sentencing at which the court agrees further review is needed”).
Second, Nunn knowingly and voluntarily waived his right to appeal. At the
plea hearing, after Nunn indicated he “somewhat” understood the waiver provisions,
the district court** provided a detailed explanation of the appeal waiver. In his
response, Nunn affirmed he understood the appeal waiver, he had discussed it with
counsel, and his decision to waive his appeal rights was voluntary. See Andis, 333
F.3d at 890-91 (one important way district court can ensure validity of plea agreement
**
The Honorable Harold Vietor, United States District Judge for the Southern
District of Iowa.
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and waiver is to question defendant about the decision to enter that agreement and to
waive the right to appeal).
Finally, enforcing the appeal waiver would not result in a miscarriage of justice
because Nunn’s 292-month prison sentence is within the relevant range set forth in
21 U.S.C. § 841(b)(1)(A) (10 years to life). See United States v. Blue Coat, 340 F.3d
539, 542 (8th Cir. 2003) (miscarriage-of-justice exception is very narrow exception
to general rule that waivers of appellate rights are enforceable); Andis, 333 F.3d at
892 (illegal-sentence exception to general enforceability of appeal waiver is
extremely narrow exception; any sentence imposed within statutory range is not
subject to appeal).
Thus, we grant the government’s motion and dismiss the appeal.
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