*

The Honorable James E. Gritzner, United States District Judge for the

Southern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 04-1364

___________

United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the Southern

v. * District of Iowa.

*

Michael J. Nunn, * [UNPUBLISHED]

*

Appellant. *

___________

Submitted: May 24, 2005

Filed: May 31, 2005

___________

Before SMITH, FAGG, and MAGILL, Circuit Judges.

___________

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 Harold Vietor, United States District Judge for the Southern

District of Iowa. 

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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
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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. 

______________________________