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The Honorable Mark W. Bennett, United States District Judge for the Northern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-3792

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the Northern

v. * District of Iowa.

*

Khoi Van Ha, * [UNPUBLISHED]

*

Appellant. *

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Submitted: December 7, 2009

 Filed: December 11, 2009

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Before BYE, BOWMAN, and BENTON, Circuit Judges.

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PER CURIAM.

Pursuant to a written plea agreement, Khoi Van Ha pleaded guilty to conspiring

to manufacture, possessing with intent to distribute, and distributing 1,000 or more

marijuana plants within 1,000 feet of a protected location, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A); 846; and 860 (1999). After granting the government's

substantial-assistance motions under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), the

District Court1

 sentenced Ha to 108 months in prison, which was 12 months below the

statutory minimum, and 10 years of supervised release. Ha’s counsel has moved to
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withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967), in

which he argues that Ha's sentence is unreasonable. In his pro se supplemental brief,

Ha argues that he was actually innocent of the drug quantity assessed against him; he

did not understand that the charge to which he pleaded guilty carried a 10-year

mandatory minimum prison sentence, and would not have pleaded guilty had he

understood; the Court should have reduced his sentence by 50%, and should have

given him safety-valve relief; and enforcing the appeal waiver would constitute a

miscarriage of justice because his plea was not knowing and voluntary, he was

sentenced under the incorrect statutory provision, and his sentence does not comply

with "statutory mandates."

We will enforce an appeal waiver in a plea agreement only when the appeal

falls within the scope of the waiver, both the waiver and plea agreement were entered

into knowingly and voluntarily, and enforcement of the appeal waiver would not

result in a miscarriage of justice. See United States v. Andis, 333 F.3d 886, 889–92

(8th Cir.) (en banc), cert. denied, 540 U.S. 997 (2003). Here, through an interpreter,

the District Court thoroughly questioned Ha about his understanding of the plea

agreement and the voluntariness and consequences of his plea. Ha confirmed that

counsel, aided by an interpreter, read the agreement to him, paragraph by paragraph,

and that he had initialed a paragraph only when he understood and agreed to it, and

he does not suggest on appeal that he did not know about or understand the waiver at

the time he signed the plea agreement or entered his plea. See United States v.

Cheney, 571 F.3d 764, 766–67 (8th Cir. 2009).

Further, the sentencing issues raised in this appeal fall within the scope of the

appeal waiver. Accordingly, we will enforce the waiver and dismiss the appeal. See

Andis, 333 F.3d at 889–92 (holding that court should dismiss appeal where it falls

within scope of valid waiver and no miscarriage of justice would result); United States
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Even if Ha's appeal waiver is unenforceable, we see no reason to invalidate the

remainder of the plea agreement, which forecloses his sentencing arguments on

appeal. See United States v. Mickelson, 433 F.3d 1050, 1055–56 (8th Cir. 2006)

(holding that a defendant who explicitly and voluntarily exposes himself to specific

sentence may not challenge that punishment on appeal). 

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v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam) (enforcing

appeal waiver in Anders case).2

Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75

(1988), we have found no nonfrivolous issues that are not encompassed by the appeal

waiver. Accordingly, we grant counsel’s motion to withdraw, and we dismiss the

appeal based on the appeal waiver. 

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