United States Court of Appeals

For the Eighth Circuit

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No. 12-1592

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Antonio Ramon Guzman

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the District of South Dakota - Sioux Falls

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 Submitted: October 19, 2012

 Filed: February 21, 2013

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Before LOKEN, SMITH, and BENTON, Circuit Judges.

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SMITH, Circuit Judge. 

Antonio Ramon Guzman pleaded guilty to possession with intent to distribute

a controlled substance, in violation of 21 U.S.C. § 841(a)(1). Guzman's plea

agreement included an appeal waiver. The district court sentenced him to 121

1

The Honorable Karen E. Schreier, United States DistrictJudge for the District 1

of South Dakota.
months' imprisonment to be followed by five years of supervised release. Guzman

appeals, arguing that (1) the government breached the plea agreement by having him

plead guilty to a different offense with a higher mandatory minimum sentence than

the offense for which he wasindicted, and (2) the plea agreement was ambiguous and

should be construed against the government. We enforce the appeal waiver contained

in the plea agreement and dismiss Guzman's appeal.

I. Background

After Guzman attempted to distribute methamphetamine ("meth") to an

undercover police officer, hewas arrested. According to the presentence investigation

report (PSR), Guzman possessed 370.5 grams of a mixture of meth (125.8 grams of

actual meth based on a Drug Enforcement Agency lab test) during the final buy

arrangement with the undercover officer.

The government filed an indictment charging that Guzman "did knowingly and

intentionally possess with the intent to distribute 50 grams or more of a mixture and

substance containing methamphetamine, a Schedule II controlled substance, in

violation of 21 U.S.C. § 841(a)(1)." At Guzman's initial appearance, the magistrate

judge reviewed the indictment with Guzman and advised him that the "[p]ossible

penalties" were a "minimum [of] 5 years to [a] maximum of 40 years[']

imprisonment." Guzman pleaded not guilty to the charges set forth in the indictment.

Thereafter, Guzman and the government entered into a plea agreement that was

signed by Guzman, Guzman's attorney, and the government. The plea agreement

provided, among other things, that (1) Guzman would plead guilty to violating

§ 841(a)(1); (2) the government had discretion to recommend any sentence within the

statutory limits; and (3) Guzman waived his right to appeal, except for the ability to

"appeal any decision by the Court to depart upward pursuant to the sentencing

guidelines as well as the length of his sentence for a determination of its substantive

reasonableness should the Court impose an upward departure or an upward variance

pursuant to 18 U.S.C. § 3553(a)." 

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Paragraph C of the plea agreement states, in relevant part:

The Defendant will plead guilty to the Indictment filed in this case,

which chargesthe violation of 21 U.S.C. § 841(a)(1). The charge carries

a mandatory minimum sentence of 10 years in prison and a maximum

sentence of life in prison, a $10 million fine, or both, and a term of

supervised release.

(Emphasis added.) 

At the change-of-plea hearing, the district court reviewed "the mandatory

minimum and the possible maximum penalties" with Guzman, stating:

I wanted to go over with you what the mandatory minimum and the

possible maximum penalties are. These are a little different than what

was in your Plea Agreement, so I want you to listen carefully as I go

through this. It's actually in some instances less than what was in your

Plea Agreement. 

The mandatory minimum period of imprisonment is a period of

not less than 10 years, and the maximum period of imprisonment is not

more than 40 years. The maximum fine is not more than $5 million. 

* * *

Do you understand those are the mandatory minimum and the

maximum penalties that you face if you plead guilty? 

Guzman replied, "Yes, Your Honor." Guzman also acknowledged that he was

waiving his right to appeal, except if the court sentenced him above the Guidelines

range. The district court accepted Guzman's guilty plea, finding that the plea was

"knowing and voluntary." 

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Guzman later filed a pro se motion to withdraw his guilty plea. He argued that

the plea agreement violated his Fifth Amendment due process rights because the

indictment charged him with possession with intent to deliver a 50-gram mixture of

meth, but the factual basis statement of the plea agreement stated that he "possessed

50 grams or more of methamphetamine (pure) with the intent to distribute it to the

undercover officer." Guzman subsequently withdrew this pro se motion. At the time

of the withdrawal, Guzman stated that his withdrawal of the motion was knowingly,

voluntarily, and intelligently made following four meetings with his counsel. The

district court granted the motion to withdraw. 

The PSR calculated a total offense level of 29 (base offense level of 32 with

a three-level reduction for acceptance of responsibility) and a criminal history

category ofIV. The resulting Guidelines range was 121 to 151 months' imprisonment.

Guzman filed no objections to the PSR. During the sentencing hearing, confusion

arose as to the correct mandatory minimum. The district court initially stated that the

mandatory minimum was five years' imprisonment, but the government and defense

counsel ultimately agreed that the mandatory minimum was ten years' imprisonment

based on the factual basis statement that Guzman had signed. The factual basis

statement indicated that Guzman possessed with intent to distribute 50 grams or more

of pure meth rather than a meth mixture. The district court sentenced Guzman to 121

months' imprisonment followed by five years of supervised release. The court based

its sentence on Guzman's role in the offense and his lack of full cooperation with law

enforcement. 

Guzman filed a timely notice of appeal, and the government moved to dismiss

the appeal "based upon the valid and enforceable appellate rights waiver contained

within the written plea agreement."

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II. Discussion

Guzman argues that his case should be remanded for resentencing because the

plea agreement was ambiguous as to the mandatory minimum for the offense.

Guzman did not raise this issue before the district court and acknowledges that if we

address the issue he raises, we would do so under a plain-error review standard.

2

"We review de novo the issue of whether a defendant has

knowingly and voluntarily waived rights in a plea agreement." United

States v. Swick, 262 F.3d 684, 686 (8th Cir. 2001). "We review

questions regarding the interpretation and enforcement of plea

agreements de novo. Where a plea agreement has been accepted by the

court, we generally interpret the meaning of the terms in the agreement

according to basic principles of contract law." United States v. Mosley,

505 F.3d 804, 808 (8th Cir. 2007).

United States v. Selvy, 619 F.3d 945, 949 (8th Cir. 2010).

"When reviewing a purported [appeal] waiver [contained in a plea agreement],

we must confirm that the appeal falls within the scope of the waiver and that both the

waiver and plea agreement were entered into knowingly and voluntarily." Andis, 333

Guzman also argues that the government breached the plea agreement by 2

arguing for a ten-year mandatory minimum sentence during sentencing rather than a

five-year mandatoryminimumsentence, which matched the charge in the indictment.

We conclude that Guzman waived this argument by withdrawing his pro se motion

to withdraw his guilty plea prior to sentencing. See United States v. Wisecarver, 598

F.3d 982, 988 (8th Cir. 2010) (explaining that a defendant waives an argument by

intentionally relinquishing or abandoning a known right and that waived claims are

not reviewable on appeal). As the government points out, in withdrawing his pro se

motion to withdraw his guilty plea, Guzman acknowledged that his "decision to

withdraw these pleadingsis knowingly, voluntarily, and intelligentlymade following

four meetings with counsel." Guzman also filed and signed a consent in which he

admitted that he "thoroughly discussed the purpose and the effect" of the withdrawal

of his pro se documents and consented to their withdrawal. 

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at 889–90. But if enforcing the waiver "would result in a miscarriage of justice," we

will decline to enforce the waiver "[e]ven when these conditions are met." Id. at 890. 

We have previously held that a defendant's appeal waiver in a plea agreement

was "knowing and voluntary" where the "plea agreement state[d] that[the] guilty plea

was 'voluntary' and not coerced," the plea agreement stated that the defendant

"discussed the case and her rights with her attorney and that she was advised of the

nature and range of her possible sentence," and "[t]he district court confirmed that

[the defendant] had reviewed the provisions of the plea agreement with her attorney."

United States v. Cervantes, 420 F.3d 792, 794 (8th Cir. 2005).

As inCervantes, Guzman entered into the plea agreement after consulting with

his attorney. Part A of the plea agreement provides that Guzman "agrees that he has

been fully advised of his statutory and constitutional rights herein, and that he has

been informed of the charges and allegations against him and the penalty therefor,

and that he understands the same." Part O of the plea agreement provides, in relevant

part:

The Defendant hereby waives all defenses and his right to appeal any

non-jurisdictional issues. The parties agree that excluded from this

waiver is the Defendant's right to appeal any decision by the Court to

depart upward pursuant to the sentencing guidelines as well as the

length of his sentence for a determination of its substantive

reasonableness should the Court impose an upward departure or an

upward variance pursuant to 18 U.S.C. § 3553(a).

At the change-of-plea hearing, the district court confirmed that Guzman had

reviewed the plea agreement with counsel prior to signing it. It also confirmed

Guzman's understanding of the appeal waiver. The court concluded that Guzman was

"aware of the nature of the charges and the consequences of the plea, and that the plea

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of guilty is a knowing and voluntary plea supported by an independent basis in fact

containing each of the essential elements of the offense." 

As to Guzman's withdrawal of his pro se motion to withdraw his guilty plea,

Guzman stated that his withdrawal of the motion was "knowingly, voluntarily, and

intelligently made following four meetings with counsel."

Based on the record, we conclude "the appeal falls within the scope of the

waiver and that both the waiver and plea agreement were entered into knowingly and

voluntarily." Andis, 333 F.3d at 889–90. Furthermore, Guzman's sentence of 121

months' imprisonment falls below the statutory maximum for either possession with

intent to distribute 50 grams of pure meth or 50 grams of a meth mixture. Enforcing

the appeal waiver will not result in a miscarriage of justice. See Andis, 333 F.3d at

891.

For the aforementioned reasons, we conclude that Guzman waived his right to

appeal whether the district court plainly erred in imposing a 121-month sentence

based on possessing with the intent to distribute 50 grams or more of pure meth where

the indictment alleged 50 grams or more of a meth mixture. 

III. Conclusion

Accordingly, we dismiss Guzman's appeal.

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