United States Court of Appeals

For the Eighth Circuit

___________________________

No. 13-2485

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

David E. McMaster

lllllllllllllllllllll Defendant - Appellant

____________

 Appeal from United States District Court 

for the District of North Dakota - Bismarck

____________

 Submitted: March 14, 2014

 Filed: May 9, 2014

[Unpublished]

____________

Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges.

____________

PER CURIAM.

David E. McMaster pled guilty to conspiracy to commit bank and wire fraud

affecting a financial institution in violation of 18 U.S.C. § 1349. The district court1

The Honorable Daniel L. Hovland, United StatesDistrictJudge for the District 1

of North Dakota. 
sentenced McMaster to 188 months imprisonment. McMaster appeals, asserting that

the district court erred in applying the sentencing enhancement under section

2B1.1(b)(16)(B)(i) of the Sentencing Guidelines for substantially jeopardizing the

safety and soundness of a financial institution. We dismiss the appeal, holding that

McMaster knowingly and voluntarily waived his right to appeal on this ground. 

“We review de novo whether a defendant waived the right to appeal a

sentence.” United States v. Azure, 571 F.3d 769, 772 (8th Cir. 2009). “[W]aivers are

contractual agreements between a defendant and the Government and should not be

easily voided by the courts.” United States v. Andis, 333 F.3d 886, 891 (8th Cir.

2003) (en banc). “We will generally enforce such a waiver aslong asthe appeal falls

within the scope of the waiver, and the defendant’s accession to the plea agreement

and the waiver was knowing and voluntary.” Azure, 571 F.3d at 772. A waiver may

be avoided, however, if the enforcement would result in a miscarriage of justice. Id. 

McMaster pled guilty pursuant to a written agreement that contained a waiver

of his right to appeal his conviction and sentence. Although McMaster reserved his

right to appeal a sentence greater than the upper limit of the sentencing range

determined by the court, McMaster received a 188-month sentence, which is

significantly less than the upper limit of 235 months determined by the district court. 

Accordingly, this appeal falls within the scope of the waiver. 

Moreover, careful review of the record reflects that McMaster knowingly and

voluntarily assented to the plea agreement and waiver. Both McMaster and his

attorney signed the agreement, and the agreement was thoroughly explained by the

district court. McMaster confirmed his understanding of the district court’s specific

advisement that pursuant to the plea agreement “[you] agree to give up or waive your

right to appeal the conviction on your record and the sentence that I order you to

serve as long as I order a sentence that falls within the sentencing guidelines that are

found to apply to you.” The district court also informed McMaster that a sentencing

-2-
range of 188 to 235 months—a range reflecting the four level enhancement under

section 2B1.1(b)(16)(B)(i) of the Sentencing Guidelines—could apply to him. 

Finally, atsentencing, the district court determined that the applicable guideline range

wasindeed 188 to 235 months. Thus, we find the record fully supports a valid appeal

waiver to which no exception to enforcement is applicable under these circumstances. 

See Andis, 333 F.3d at 892 (“[A]n allegation that the 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.”). Accordingly, we dismiss the appeal. 

______________________________

-3-