1 The Honorable John A. Jarvey, United States District Judge for the Southern District of Iowa. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 07-2730

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the Southern * District of Iowa. Daniel Fronczak, Jr., * * [UNPUBLISHED] Appellant. *

___________ Submitted: March 12, 2008 Filed: May 30, 2008

___________ Before MURPHY, ARNOLD, and BENTON, Circuit Judges.

___________ BENTON, Circuit Judge. With a plea agreement, Daniel Fron czak, Jr., pled guilty to attempted production of child pornography, 18 U.S.C . § 2251(a). The district court 1 sentenced him to 340 months’ imprisonment. Fronczak appeals, asserting sentencing errors. Because he waived his right to appeal these issues, the appeal is dismissed.-2- Fronczak signed the plea agreement, which states, “The defendant acknowledges voluntarily entering into this plea agreement . . . .” One section, “Limited Waiver of Right to Appeal,” says:

The defendant is aware that federal law, specifically, Title 28, United States Code, Section 1291, affords a de fendant a right to appeal a final decision of the district court and th at federal law, specifically, Title 18, United States Code, Section 3742, affo rds a defendant a right to appeal the conviction and/or sentence imposed. Understanding those rights, and having thoroughly discussed those right s with his attorney, the defendant hereby knowingly and expressly waives any and all rights to appeal the convictions in this case, including a waiver of all motions, defenses and objections which he could assert to th e charges or to the Court’s entry of Judgement [sic] against him, and any and all issues inhering therein, including review pursuant to Title 18, United States Code, Section 3742, of any sentence imposed, except for the following: a. The right to timely challengethe defendant’s conviction and sentence should the Eighth Circuit Court of Appeals or the United States Supreme Court later find th at the substantive basis of the defendant’s plea of guilty and re sulting conviction fails [sic] to state a crime upon which the defendant could be convicted. b. Any issue solely involving a matter of law brought to the District Court’s attention at th e time of sentencing concerning which the Court agrees further review is needed.

Fronczak also signed a “Statement by Defendant in Advance of Plea of Guilty,” which states, “My decision to enter this plea was made after full and careful thought, with the advice of my attorney, and with a full understanding of my rights, the facts and circumstances of the case and the cons equences of the plea,” and “My attorney has explained my right to appeal my c onviction and sentence, the government’s right to appeal my sentence under 18 U.S.C. § 3742, and the waiver of appellate rights that is included in my plea agreement.”-3- The district court conducted a change -of-plea hearing on November 30, 2006. After advising Fronczak of his rights and questioning him under oath, the court accepted the plea, finding he was competent and acting voluntarily. On July 3, 2007, the court sentenced Fronczak to 340 months’ imprisonment. Fronczak argues that the court erred in applying an enhancement for obstruction of justice, failing to grant a reduction for acceptance of responsibility , and failing to provide a reasoned explanation for its sentence.

This court reviews de novo the interp retation and enforcement of a plea agreement. United States v. Egenberger , 424 F.3d 803, 804 (8th Cir. 2005). “The ‘general rule’ is that ‘a defendant is allo wed to waive appellate rights,’ including those involving the sentence imposed.” United States v. Aronja-Inda , 422 F.3d 734, 737 (8th Cir. 2005), quoting United States v. Andis , 333 F.3d 886, 889 (8th Cir. 2003) (en banc). “[I]n order to establish that the de fendant’s appeal is barred by his waiver, the government must establish: (1) that the app eal is within the scope of the waiver, (2) that the defendant entered into the waiver knowingly and voluntarily, and (3) that dismissing the appeal based on the defe ndant’s waiver would not result in a miscarriage of justice.” Id. , citing Andis , 333 F.3d at 889.

First, the government must show “that a plea agreement clearly and unambiguously waives a defendant’s right to appeal.” Andis , 333 F.3d at 890. “Plea agreements will be strictly construed and any ambiguities in these agreements will be read against the Government and in favor of a defendant’s appellate rights.” Id. Here, there is no ambiguity. The plea agreement specifically waived Fronczak’s appellate rights, including review of any sentence imposed, subject to two limited exceptions. The first exception is where a higher court de termines that either “the substantive crime of conviction is not criminal, or the factual basis for that conviction fails to state a crime.” Aronja-Inda , 422 F.3d at 737 (interpreting an identical appellate waiver provision). This exception does not apply here. The second exception is where the district court acknowledges that guidance is needed on an issue solely of law. See id.-4- The district court made no such acknowledgment here. The government has established that the sentencing issues raised in this appeal are w ithin the scope of the waiver.

Second, the government must show that the waiver was knowing and voluntary. Andis , 333 F.3d at 890. This requirement app lies to each term of the agreement. Id. Here, the waiver of appellate rights wa s part of a written plea agreement Fronczak signed. See United States v. McIntosh , 492 F.3d 956, 960 (8th Cir. 2007) (emphasizing that the waiver was included in a signed plea agreement, when determining whether the waiver was knowing and voluntary). The agreement specifically stated that Fronczak was acting voluntarily. In a companion document, Fronczak stated that his attorney had explained his appellate rights, and that he understood that the plea agreement waived thos e rights. The district court specifically informed and questioned Fronczak, fi nding that he acted voluntarily. See Andis , 333 F.3d at 890-91 (“One 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 and waive the right to appeal.”). Finally , Fronczak does not argue he entered the agreement unknowingly or involuntarily. See United States v. Blue Coat , 340 F.3d 539, 541 (8th Cir. 2003) (giving weight to th e fact that the defendant had not claimed the opposite when determining whether the waiver was knowing and voluntary). The government has established that Fronczak’s waiver was knowing and voluntary.

This court “will still refuse to enforce anotherwise valid waiver if to do so would result in a miscarriage of justice.” Andis , 333 F.3d at 891. “[T]his exception is a narrow one and will not beallowed to swallow the general rule that waivers of appellate rights are valid.” Id. The miscarriage-of-justi ce exception protects the right to appeal an illegal sentence, but “an allegation that th e 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 891-92. Fronczak’s arguments deal-5- exclusively with misapplication of the guidelin es, or an abuse of discretion. Enforcing the appeal waiver will not result in a miscarriage of justice. See McIntosh , 492 F.3d at 960.

The appeal is dismissed.

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