The Honorable William G. Cambridge, Chief Judge, United States Distric t 1 Court for the District of Nebraska. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3114

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Harry Lee Michelsen, * * Appellant. *

___________ Submitted: January 13, 1998

Filed: April 13, 1998

___________ Before RICHARD S. ARNOLD, Chief Judge, BRIGHT and WOLLMAN, Circui t Judges.

___________ WOLLMAN, Circuit Judge. Harry Lee Michelsen appeals fr om an order by the district court dismissing the 1 appealfrom his sentence based upon Michelsen’s waiver of appellate rights pursuant to a plea agreement. We affirm.-2- I. Michelsen was charged with failure to pay past due child support in violation of the Child Support Recovery Act (CSRA), 18 U.S.C. § 228 (19 92). He retained private counsel and consented to have his case heard by a United States Magistrate Judge. A plea agre ement was soon reached. The agreement included the following provisions:
1. ACKNOWLEDGMENT AND WAIVER OF RIGHTS AN D UN DERSTANDING OF MAXIMUM PENALTIES: The defendan t ag rees that he has been fully advised of his statutory and constitutiona l rights herein, and that he has been informed of the cha rges and allegations against him and the penalty therefor, and that he understands these rights, charges an d penalties. The defendant further agrees that he understands that by e ntering a plea of guilty as set forth hereafter, he will be waiving certain statutory and constitutional rights to which he is otherwis e entitled. 2. PLEA AGREEMENT PROCEDURE - NO RIGHT TO WITHDRAW PLEA IF COURT REJECTS RECOMMENDATION: The United States and the defendant agree that this Plea Agreement is presente d to the Court pursuant to Rule 11(e)(1)(B) of the Federal Rules of Criminal Procedure, which pro vides, among other things, that the government will make a recommendation or agree not to opposed [si c] the defendant’s request for a part icular sentence, but that SUCH RECOMMENDATIONS AR E NOT B INDING ON THE COURT and that the DEFENDANT MA Y NO T WITHDRAW HIS PLEA OF GUILTY if the Court rejects suc h recommendations.

. . . . 4.

. . . Further, the United States will recommend a period o f in carceration of 6 months, that the period of incarceration shall b e suspended and defendant placed on supervised probation for a period of 5 years duri ng which period the defendant shall make any required child support arrearages payments as ordered by the Court. Fail ure to make theThe H onorable Thomas D. Thalken, United States Magistrate Judge for th e 2 District of Nebraska. -3- requir ed payments may result in imposition of the court’s sentence of incarceration

.

. . .

. . . . 6. WAIVER

OF DEFENSE AND APPEAL RIGHTS: Defendant hereb y waives any right to raise and/or appeal and/or file any post-convictio n wr its of habeas corpus or coram nobis concerning any and all motions , defenses, probable cause determinations , and objections which defendant has asserted or could assert to this prosecution and to the Court’s entr y of judgm ent against defendant and imposition of sentence under 1 8 U.S.C. § 3742 (sentence appeals). Plea Agr eement at 1-4 (emphasis in original). The agreement, dated February 28 , 1997, was signed by both Michelsen and his attorney. At a hearing commenced that same day, the magistrate judge accepted the plea 2 agreement as negotiated. During the hearing, the following exchange occurred:
THE COURT: Um, I’m goingto hand to your counsel three documents and you can just keep them there for the moment. First we h ave a petition to enter a plea of guilty of — which p urports to contain your signature on that document. Is that your signature on the next to the last page of that document? MR. MICHELSEN: Yes, Your Honor, it is. THE COURT: And in filling out this petition, who filled out the petition? Is it you or your attorney’s handwriting on the petition? MR. MICHELSEN: My attorney filled it out for me.-4-

THE COURT: And d id he — did he fill it out in accordance to you r instructions as to how you answered it? MR. MICHELSEN: Yes, Your Honor. THE COURT: And those are the answers that you gave? MR. MICHELSEN: Yes, Your Honor.
THE COURT: Okay. Then we have a plea agreement which is fou r pages a nd it purports to have your signature on Page 4. Is that you r signature on Page 4? MR. MICHELSEN: Yes, Your Honor. THE COURT: Okay. And then we have a factual basis sta tement which is three p ages but on the second page it purports also to have you r signature. Is that your signature on there? MR. MICHELSEN: Yes, Your Honor. THE COURT: Did anybody for ce or threaten or coerce you to sign any of these documents? MR. MICHELSEN: No, Your Honor. Transcript of Hearing on Arraignment at 3-4. And later: THE COURT: Now, y ou’re offering to plead pursuant to the ple a ag reement. We have the plea agreement which you’ve indicated you r signature on there. [Addre ssing the Government], would you summarize the plea agreement for the Court? [THE GOVERNMENT]: Yes, Your Honor. The plea agreement is a four-page document which the Defendant in this case and the Unite d States agree to certain terms. Among them is that the Defendant wil l plead guilty to the charge in the one count Information. In exchange for-5-

that , the — the Government will make a recommendation to the Court regarding th e sentence to be imposed in this case; although, the agreement indicates thatthat is a nonbinding recommendation. The Government is recommending in this case that a term of imprisonment not be imposed and that t he — rather that a period of incarceration of six months be imposed but that it be suspended and that the Defendant be placed o n supervised

probation for a period of five years during which time he would make any child support arrearages payments that are ordered by the Court. . . . THE COURT: Are there any other provisions in the plea agreement? [THE GOVERNMENT]: There — there — there are others that are in the plea agreement, Your Honor, but I think those are the main points. THE COURT: Is th at your understanding, Mr. Michelsen, with regar d to the plea agreement? MR. MICHELSEN: Yes, Your Honor. THE COURT: You understan d that the Government is going to make a re commendation in this matter with regards to the sentence but tha t recommendation will not be bindin g upon the Court? Do you understand that? MR. MICHELSEN: I understand that, Your Honor. THE COURT: That I can reject that and impose — theoretically impose the maximum punishment that could be imposed, as I prev iously indicated to you? MR. MICHELSEN: Ultimately it’s your decision to make. Transcript of Hearing on Arraignment at 9-11. No explicit reference was made during the hearing to the provision in the plea agreement by which Michelsen waived his right to appeal his sentence.-6-

The reafter, the magistrate judge granted a motion by Michelsen’s counsel fo r pe rmissionto withdraw. Michelsen subsequently waived his right to counsel an d proceede d pro se. At the sentencing hearing, the government made the followin g recommendation: [THE GOVERNMENT]: Th ank you. Your Honor, the Governmen t does not believe that a period of incarceration is currently required for the Defen dant. The — the desire of the Government would be for thi s individual to obtain employment that would result in his ability to ear n inco methat could be then sent to the victims of this crime. Th e Governme nt

believes this is a crime to his victims who are — wer e expecting this money for many years. S o the Government would ask that pu rsuant to the plea agreement that a term of imprisonment be impose d but in a — suspended during the course of a five-year period of probation. Transcript of Sentencing Hearing at 10-11. Ultimately, the court rejec ted the government’s recommendation and sentenced Michelsen to imprisonment for six months, restitution in the am ount of $89,420.64, and
a speci al assessment of ten dollars. After imposing sentence, the court made th e following statement:
THE COURT: Mr. Michelse n, you’re advised that you may appeal this sent ence within ten days after the filing of the judgment in this matter

. That will probably happen within the next day or so. When that is filed you will have ten days to appeal that sentence to one of the judges of the United States District Court. Transcript

of Sentencing Hearing at 20. The government made no objection to thi s statement at the time. The written judgment contained the following provision: Following th e imposition of sentence, the court advised the defendant of his right to appeal pursuant to the provisions of Fed. R. Crim. P. 32 and-7-

the pr ovisions of 18 U.S.C. § 3742(a) and that such Notice of Appeal must be file d with the clerk of this court within ten (10) days of this date.
United S tates v. Harry Lee Michelsen , No. 8:96CR129-1 (D. Neb. May 13, 1997 ) Judgment at 6 (Statement of Reasons for Sentence). In his appeal to the district court, Michelsen challenged both the constitutionality of the Child Support Recovery Act and the sentence imposed by the magistrate judge. Rat her than addressing the merits, the district court granted the government’s motion to dismiss the appeal with prejudice, holding that Michelsen had validly waived hi s appellate rights. SeeMemorandum Opinion and O rder at 2-3 (D. Neb. July 21, 1997). Michelsen now seeks relief from the district court’s order of dismissal.
II. The Constitution makes no assurances regarding the right of a crimin al defendant to appe al his conviction or sentence; such a right is “purely a creature of statute. ” United States v. Rutan , 956 F.2d 827, 829 (8th Cir. 1992) (citing Abney v. Unite d States , 431 U.S. 651, 656 (1977)); see 18 U.S.C. § 3742; 28 U.S.C. § 1291. It is well settled that a procedural ri ght, whether constitutionally derived or grounded in statute, may be waived

by a criminal defendant. See United States v. Garrido , 995 F.2d 808, 814 (8th Cir . 1993); Rutan , 956 F.2d at 829. “Accordingly, a defendant who plead s guilty and expressly waives the statutory right to raise o bjections to a sentence may not then seek to appeal the very sentence which itself was part of the agreement.” Rutan , 956 F.2d at 829; see also United States v. His Law , 85 F.3d 379 (8th Cir. 1996) (per curiam) (defendant’s promise as part of plea agreement not to appeal his sentence held binding). Any waiver of the r ight to appeal, however, must be the result of a knowing and voluntary decision. See Rutan , 956 F.2d at 829.-8-

Issues concerning the interpretation and enforcement of a plea agreement ar e issu es of law reviewed de novo. See United States v. Van Thournout , 100 F.3d 590, 594 (8th Cir. 1996). Michelsen does not dispute that his written plea agreemen t contains a clear and express waiver of the right to appeal both his conviction and his sent ence. Our review, therefore, is limited to whether Michelsen’s decision to bin d himself by the provisions of this agreement was knowing and voluntary. See Rutan , 956 F.2d at 829. We look to the circumstances surrounding the signing and entry of th e plea agreement to determine whether the defendant willfully agreed to its terms

. See Lindner v. Wyrick , 644 F.2d 724, 728 (8th Cir. 1981) (“Voluntariness i s determined by factors at the ti me of the plea.”). Such circumstances may include “the background, experience and conduct of the accused.” United State s v. Davis , 954 F.2d 182, 186 (4th Cir. 1992) (citing Johnson v. Zerbst , 304 U.S. 458, 464 (1938)).
Michelsen does not dispute that he signed the plea agreement. He does no t dispute that he was represented by competent counsel at that time. He makes n o complaint that the assistance provided by his privately retained co unsel was ineffective. He does not contend that he was coerced to enter into the plea or that it was th e product of

duress. He makes no assertion that he was misled as to the nature of th e agreement. He does not profess that he did not unders tand its provisions, including the clear, bo ld-faced waiver of appellate rights. He has not suggested that he wa s incapaci tated or incompetent at the time, or that he was physically or mentall y incapable of either comprehending the agreement or knowingly assenting to its terms.

Instea d, Michelsen’s challenge to the validity of his waiver rests upon thre e arguments. First, Michelsen contends that because the mag istrate judge did not engage him in an explicit discussion regarding his waiver of appellate rights during the Rul e 11 col loquy at his plea hearing, his waiver cannot be considered knowing an d voluntary. We do not agree. Although it might have been preferable for the court to have conducted a colloquy with Michelsen regarding his waiver of appeal, such a dialogue is not a prerequisite for a valid waiver of the r ight to appeal. See, e.g. , United-9-

Stat es v. Wenger , 58 F.3d 280, 282 (7th Cir. 1995); United States v. DeSantiago

Martinez , 38 F.3d 394, 395 (9th Cir. 1992); United States v. Portillo , 18 F.3d 290, 292- 93 (5th Cir. 1994); Davis , 954 F.2 d at 186; but see United States v. Bushert , 997 F.2d 1343, 1351 (11th Cir. 1993) (concluding that in most circumstances, for sentenc e appeal w aiver to be knowing and voluntary, district court must have specificall y discussed sentence appeal waiver with defendant during Rule 11 hearing).
The record establishes that Michelsen, who turned fifty shortly after hi s sentenc ing, is a competent, articulate high school graduate with military service , managerial experience in the private sector, and p rior experience in the criminal justice system. His attorney of ch oice negotiated the agreement to which Michelsen gave his assent. Michelsen and his attorney possessed a copy of the signed agreement at th e plea hearing. Michelsen’s statements at the hearing indicate that he fully understood the finality of his decision to plead guilty and that the agreement was in complet e ac cordance with his prior understanding; that it was, in fact, the bargain to which h e had agreed. In light of these circumstances, we conclude that Michelsen’s decision to waive his appellate rights was knowing and voluntary. Next, Michelsen contends that the magistrate judge’s statemen t at the sentencing hearing indicating that Michelsen had the right to appeal, as well as similar language contai nedin the written judgment, should negate the waiver. In support of thi s argument, Michelsen relies on United States v. Buchanan , in which the Ninth Circuit held, in circumstances somewhat similar to these, that the district court’s ora l pr onouncement

of a right to appeal should control, rendering the defendant’s waive r of appellate rights unenforceable. 59 F.3d 914, 917-18 (9th Cir. 1995). Assuming th at we would be free to do so, we decline to adopt the reasoning of Buchanan

. A ny statement by the court at the sentencing hearing could not hav e affected Michelsen’s decision, made nearly three months earlier, to plead guilty an d waive his appellate rights. See United States v. Melanco n , 972 F.2d 566, 568 (5th Cir.As we observed in Rutan , a waiver of the right to appeal one’s sentence “would 3 not prevent an appeal where the sentence imposed is not in accordance with th e negotiated agreement.” 956 F.2d at 829-30. Nor would it prevent a challenge under 28 U.S.C. § 2255 to an “illegal sentence,” such as a sentence imposed in excess of the ma ximum penalty provided by statute or based upon a constitutionally impermissible factor such as race. The g overnment’s failure to object to the court’s statement at the sentencin g 4 he aring does not affect our determination of this matter. See Melancon , 972 F.2d a t 568. Although the government might well have clarified the issue by speaking up, a formal objection to the statement was not dictated by the circumstances, as ou r -10- 1992) (fact that, four months after defendant pled gui lty pursuant to agreement waiving his rig ht to appeal, court told him at sentencing that he had right to appeal hi s co nvictionand sentence did not allow defendant to appeal and did not affec t determination that his waiver was voluntary, knowing, and permissible). Michelsen’s apparent later belief -- based upon events that oc curred after his sentence was imposed -- that he might be allowed to escape from his commitments, is irrelevant to our present inqui ry. See Lindner , 644 F.2d at 728 (court looks to circumstances surroundin g signing and entry of plea agreement to determine whether defendant willfully agreed to its terms). Moreover, the admonition by the court that Michelsen “may appe al this sentence withinten days after the filing of the judgment in this matter,” was not an inaccurate stateme nt nor wholly inconsistent with Michelsen’s waiver. Notwithstanding hi s waiver, Michelsen nevertheless implicitly pres erved his right to appeal on grounds that his sentence was illegal or imposed in violati on of the plea agreement. See Rutan , 956 F.2d at 829-30; United States v. Baramdyka , 95 F.3d 840, 843 (9th Cir. 1996), cert
. denied , 117 S. Ct. 1 282 (1997). By informing Michelsen of the statutory right to file 3
an appeal, the court was simply complying with its duty to do so. See Fed. R. Crim. P. 32(c)(5). In any event, the court’s recitation of Michelse n’s statutory right could not unilaterally revoke the earlier waiver to which Michelsen had agreed. 4foregoi ng analysis makes clear. Moreover, this is not a case in which the defendan t

was prejudiced by any failure of the government to clarify the court’s remarks. See, e.g. , United

States v. Vogt , 901 F.2d 100, 102 (8th Cir. 1990) (government could not seek to vacate plea agreement after it delayed in co mplaining of defendant’s breach for ten wee ks while continuing to accept agreement’s benefits by twice seeking an d receiving his grand jury testimony). -11- Fin ally, Michelsen asserts that he is entitled to appeal because the sentenc e imposed b y the magistrate judge differed from the sentence negotiated under the plea agreement. This argument is utterly without merit. Michelsen agreed to plead guilty and waive his appe llate rights in exchange for the government’s recommendation of a suspended six-month sentence. The agreement also stated that the government’ s recomm endation would not be binding on the court. As shown above, Michelse n expressly and unequivocally acknowledged at his plea hearing that he understood a s much and that the court had the authority to reject the recommendation and impose the maximum sentence. The government honored its commitment and duly recommended that any period of incarceration be suspended. The sentence ultimate ly imposed, although inconsistent with the government’s recommendation, did not violate the plea agreement, nor did it
run cou nter to Michelsen’s professed understanding of that agreement. See Unite d States v. Greger , 98 F.3d 1080, 1 081 (8th Cir. 1996) (holding that so long as sentence is not in conflict with negotiated plea agreement, knowing and volunt ary waiver of right to appeal fro m sentence will be enforced); Hollis v. United States , 687 F.2d 257, 260 (8th Cir. 1982) (holding that where defendant is informed that sentencing decision rests solel y in discretion of sentencing court and defendant states that he understands a s much, plea will not be set aside as involuntary); Lindner , 644 F.2d at 728 (same).-12- III.
Crimina ldefendants are vested with many important rights, including th e s t atutory right to appeal. We believe that defendants will be better served if they are also empowered with a legitimate opportunity to choose between exercising such rights and exchanging them for something they value mo re highly, such as a recommendation by the government for a lenient sentence. See Wenger , 58 F.3d at 282. A waiver of appellate rights can be of great value to an accused as a means of gaining concessions fromthe g overnment, and thus plea agreements including such waivers are strongl y supported by public policy. See Rutan , 956 F.2d at 829; United States v. Littlefield , 105 F.3d 527, 530 (9th Cir.), cert. denied , 117 S. Ct. 2423 (1 997) (Hall, J., concurring) (“We have rep eatedly noted that public policy strongly supports plea agreements that include an appeal waiver.”).

In ord er to preserve their value, such waivers must be accorded their prope r effect. See Rutan , 956 F.2d at 829; His Law , 85 F.3d at 379; Margalli-Olvera v

. Immigration and Naturalization Se rv. , 43 F.3d 345, 355 (8th Cir. 1994); United States
v. Womack , 985 F.2d 395, 400 (8th Cir. 1993). “Empty promises are worthles s promises; if defendants could retract their waivers (the practical effect, if the procedural hurdles to an effective waiver were set too high) then they could n ot obtain concessions by promisin g not to appeal.” Wenger , 58 F.3d at 282. The government grante d Mic helsen sentencing concessions in return for an assurance that it would not b e required to expend valuable time and resource s to preserve the finality of the judgment and sente nce. To permit Michelsen to attack that bargained-for finality would be t o eliminate one of the primary incentives the government has for negotiating ple a agreements. The government has already been effectively deprived of much of th e benefit of its bargain with Michel sen by having been required to respond to the appeal to t he district court and then to this court. For us to now countenance Michelsen’ s change of heart would be to diminish that bargain even more. That we will not do.Several circuit courts of appeal have concl uded that “a waiver is not knowingly 5 or vo luntarily made if the district court fails to specifically question the defendan t concerning the waiver provision of the plea agreement d uring the Rule 11 colloquy and the record indicates that the defendant did not otherwise understand the ful l significance of waiver.” United States v. Marin , 961 F.2d 493 (4th Cir. 1992); United States v

. Bushert , 99 7 F.2d at 1347; United States v. Melancon , 972 F.2d 566, 567 (5th Cir

. 1992); but see United States v. Desantiago-Martin ez , 38 F.3d 394, 395 (9th Cir. 1994) (holding that a Rule 11 colloquy is not a prerequisite to finding a waiver valid). There is considerable doubt that the mag istrate judge engaged Michelson in a sufficient Rule 11 colloquy regarding his waiver of his right to an appeal. However, because of other circumstan ces arising at the later sentencing hearing, this need not be the basis fo r determining that Michelson retained his right to an appeal. -13- The order of dismissal is affirmed. BRIGHT, Circuit Judge, dissenting.

Adefendant may waive the right to an appeal, but only if the defendant make s the waiver knowingly and voluntarily. United States v. Rutan , 956 F.2d 827, 829 (8th 5 Cir.1992); United S tates v. Wessells , 936 F.2d 165, 167 (4th Cir.1991); United States v. DeSantiago-Martinez , 38 F.3d 394, 395 (9th C ir.1994). In this case, the prosecution agreed to recommend a suspended sentence in exchange for Michelsen’s guilty plea

. The written plea agreement provided that Michelsen would waiv e his right to an appeal. However, the magistrate judge who heard this case expressly nullified that waiver.
Accord ing to medical reports, severe epilepsy and asthma have totally disabled Michel sen. Unable to work since 1994, Michelsen owns no assets and has incurre d extensive medical liabilit

ies. In light of his physical disability and financial inability to pay, it wo uld seem that neither Michelsen nor the prosecution anticipated tha t Michelsen would

actually serve time in prison, notwithstanding the magistrate judge’s right to impos e a prison sentence. However, Michelsen’s probation officer concluded in her presentence investigation report that “the defendant . . . has no intention of-14-

paying child support . . .[and] he has no money nor will he ever have money to pay this obligation,” and recommended sentencing Michelsen to the maximum prison term.
Michelsen appeared pro se at his sentencing. The sentencing magistrate judge di d not disclose the content of the probation officer’s report and recommendation

. Although Rule 32 of the Feder al Rules of Criminal Procedure grants a judge discretion to disclose the report, it ge nerally requires the judge grant a defendant and defendant’s counsel the opportunity to comment on information that provides a basis for th e de fendant’s sentence. This undisclosed information may well have influenced th e magistrate judge's ultimate decision to sentence Michelsen to the maximum six-month sentence. However, Michelsen did not have an attorney at the sentencing hearing t o protect his rights. During Michelsen’s sentencing, t he magistrate judge recognized the defendant’s ph ysical problems and his probable inability to pay past due support payments. Th e magistra te judge clearly recognized the unusual circumstances in this case. Afte r questioning the d efendant, the magistrate judge retired to chambers with the probation officer. Upon returning, the magistrate judge, in passing sentence, stated:

I have considered the recommendation of the United State s Attorney’s Office and have rejected their recommendation. It is clear in this case that the Defendant has made little, if any, effort to obtain funds to help pay for the support of his daughter, that there was many a tim e during the past years that some employ ment could have been obtained but because of his illness which he is suffering from -- the re is no dispute. I’m not suggesting that the Defendant is - is feigning illness of any typ e whatso ever, but he has used that as an excuse in my opinion withou t obtaining some employm

ent. There was times where there was part-time employmen

t that could be obtained that could be used to help defray this enormous amount of child support th at he has neglected and failed to pay.-15- This sentence is essentially a sentence of punishment and I re cognize that and I am placed in that position, I think, by both th e Defendant and the Governme nt by bringing this matter to the Court in the present posture and what it is. And accordingly, tha t is the sentence of the Court. Sent. Tr. at 19-20. Then the magistrate judge added:

Mr. M ichelsen, you’re advised that you may appeal this sentenc e with in ten days after the filing of the judgment in this matter. That wil l probably ha ppen within the next day or so. When that is filed you wil l have ten days to appeal that sentence to one of the judges of the Unite d States District Court. Id. at 20. The prosecution did not object.
In light of the magistrate judge’s statements concerning the reasons for th e sentence, which were contrary to the recommendation of the prosecutor, I believe the mag istrate judge, by his oral direction, and the prosecutor, by failing to object , recognized that the defendant should have the right to an appeal in this unusual case.

In an analogous situation, the Ninth Circuit, in United States v. Buchanan , 5 9 F.3d 914, 917 (9th Cir.), cert. denied , 116 S.Ct. 430 (1995), has recognized that where
a district cou rt orally advises a defendant of his right to appeal at sentencing and th e government acknowledges that right by failing to object, the defendant can appeal. That court reasoned:

Litigants need to be able to trust the oral pr onouncements of district court jud ges. Given the district court judge’s clear statements a t sentencing, the defendant’s assertion of understanding, and the-16-

prosecut ion’s failure to object, we hold that in these circumstances, th e district court’s oral pronouncement controls and the plea agre ement waiver is not enforceable. Id . at 918.
The majority here states the magistrate judge's “admonition” that Michelse n mig ht appeal his sentence amounted to an inaccurate statement and one not wholl y inconsistent with the waiver. However, the magistrate judge twice clearly and precisely advised Michelsen that he could appeal.

I do not construe the magistrate judge’s statements as slips of the tongue o r missta tements. Given these directions to Michelsen by the magistrate judge, th e government’s failure to object, and the advisability of having a review of the sentence, in the circumstances of this case, I would rule that the waiver of a n appeal by Michelsen has been nullified. I would reverse and direct the district court to consider Michelsen’s appeal on the merits. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.