United States v. William J. Dixon , 162 F. App'x 654 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3943
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
William J. Dixon, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 7, 2005
Filed: December 29, 2005
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Before MURPHY, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
William J. Dixon appeals the 108-month prison sentence the district court1
imposed after he pleaded guilty to unlawful possession of a firearm as a previously
convicted felon. See 18 U.S.C. §§ 922(g)(1), 924(a)(2) (10-year maximum prison
term). He maintains that the district court violated Blakely v. Washington, 124 S. Ct.
2531 (2004), by enhancing his sentence based on judge-found facts. The government
argues that the appeal should be dismissed, noting that Dixon executed a written plea
agreement in which he specifically waived his right to “appeal or otherwise challenge
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
the constitutionality or legality of the Sentencing Guidelines,” and generally agreed
not to appeal his sentence on any ground unless the sentencing court departed upward
or imposed “a sentence in excess of the statutory maximum” or “in violation of law
apart from the Sentencing Guidelines.”
We enforce this appeal waiver. At the guilty-plea hearing, the district court
discussed the waiver with Dixon, ensuring that Dixon was pleading guilty voluntarily,
and Dixon does not challenge the validity of the plea agreement on appeal. The
constitutional challenge falls within the scope of the waiver, and no miscarriage of
justice would result from enforcing the waiver. See United States v. Andis, 333 F.3d
886, 889-92 (8th Cir.) (en banc), cert. denied, 540 U.S. 997 (2003). Dixon offers two
arguments to avoid the appeal waiver: first, that his pre-Blakely plea agreement could
not have waived “rights that he didn’t know existed prior to the Blakely decision,” and
second, that his appeal is permitted by the waiver’s language, as the challenged
enhancements – which were based on judge-found facts – resulted in a sentence “in
violation of law apart from the Sentencing Guidelines” and “in excess of the statutory
maximum” under Blakely. Both arguments are unavailing. See United States v.
Young, 413 F.3d 727, 729-30 (8th Cir. 2005) (where pre-Blakely agreement stated
“defendant agrees not to appeal or otherwise challenge the constitutionality or legality
of the Sentencing Guidelines,” holding that Blakely challenge to sentencing
enhancements made pursuant to judge-found facts came within waiver’s scope; also
rejecting argument that after Blakely, top of Guidelines range constitutes “statutory
maximum”).
Accordingly, we dismiss the appeal.
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