1

The Honorable Ortrie D. Smith, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-1517

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United States of America, *

*

Appellee, *

* Appeal from the United States

 v. * District Court for the 

* Western District of Missouri.

Michael Adkins, *

* 

Appellant. *

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Submitted: December 14, 2010

Filed: April 12, 2011

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Before RILEY, Chief Judge, BEAM and BENTON, Circuit Judges.

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RILEY, Chief Judge.

Pursuant to a plea agreement, Michael Adkins pled guilty to being a felon in

possession of ammunition in violation of 18 U.S.C. § 922(g)(1). The district court1

calculated an advisory United States Sentencing Guidelines (U.S.S.G. or Guidelines)

range of 188 to 235 months imprisonment and 3 to 5 years supervised release (level 31,

category VI). The district court sentenced Adkins to 235 months imprisonment and

5 years supervised release. Adkins appeals, and we affirm.
2

The Honorable James C. England, United States Magistrate Judge for the

Western District of Missouri.

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I. ISSUES

Adkins raises seven issues on appeal. He alleges the district court erred in

(1) denying his motion to suppress, (2) applying a four-level sentencing enhancement

for possession of a firearm in connection with a felony pursuant to U.S.S.G.

§ 2K2.1(b)(6), (3) ruling Adkins’s prior state breaking and entering conviction was a

crime of violence for the purposes of the Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e), (4) ruling his prior state second degree burglary conviction was an

ACCA crime of violence, (5) imposing a substantively unreasonable sentence,

(6) applying a two-level enhancement, pursuant to U.S.S.G. § 2K2.1(b)(1)(A), because

the offense involved possessing five or more firearms, and (7) finding Adkins was an

armed career criminal when, in his previous state felony cases, Adkins’s counsel never

advised him about the ACCA before he pled guilty. 

II. DISCUSSION

Most of Adkins’s arguments are foreclosed because Adkins waived them in his

plea agreement with the government. 

When we review an appeal waiver, we must make two determinations:

that the issue falls within the scope of the waiver and that both the plea

agreement and the waiver were entered into knowingly and voluntarily.

Even if both of these determinations are decided in the affirmative, we

will not enforce a plea agreement waiver if enforcement would cause a

miscarriage of justice.

United States v. Selvy, 619 F.3d 945, 950 (8th Cir. 2010) (quoting United States v.

Snelson, 555 F.3d 681, 685 (8th Cir. 2009)). When Adkins pled guilty, the magistrate

judge,2

 among other things, verified Adkins signed the plea agreement and was not

under duress or the influence of drugs or alcohol, and the court thoroughly explained

the terms of the appeal waiver. We determine Adkins entered into the appeal waiver
3

Because the ACCA alters the statutory maximum of the substantive crime in

this case, it might be argued the ACCA issues fall under the appeal waiver’s exception

for “a sentence imposed in excess of the statutory maximum.” Adkins does not raise

this argument, and it is therefore waived. See United States v. Greene, 513 F.3d 904,

906 (8th Cir. 2008) (“This Court routinely enforces the doctrine of waiver and

declines to address arguments a party fails to raise in its opening brief.”). In any

event, the argument fails because the plea agreement notified Adkins of the ACCA’s

statutory maximum of life imprisonment, which Adkins’s 235-month sentence does

not exceed. See United States v. Kelly, 18 F.3d 612, 616 (8th Cir. 1994) (interpreting

a particular term of the plea agreement in light of the whole document); see also

United States v. Yellow, 627 F.3d 706, 708 (8th Cir. 2010) (“Plea agreements are

contractual in nature and should be interpreted according to general contractual

principles.” (quoting United States v. Thompson, 403 F.3d 1037, 1039 (8th Cir.

2005))). 

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knowingly and intelligently, and enforcing the waiver’s terms would not result in a

miscarriage of justice. See Selvy, 619 F.3d at 951 (finding no miscarriage of justice

where the appeal issue fell within the waiver and the defendant entered into the waiver

knowingly and intelligently). 

We enforce the appeal waiver as to Adkins’s appeal issues (2)-(4) and (6).

Among other things, the plea agreement states: 

The defendant reserves the right to [appeal] . . . the district court’s order

denying the defendant’s Motion to Suppress. . . . [T]he defendant

expressly waives his right to appeal his sentence . . . on any ground,

except a sentence imposed in excess of the statutory maximum or an

illegal sentence, that is, sentencing error more serious than a

misapplication of the Sentencing Guidelines, an abuse of discretion, or

the imposition of an unreasonable sentence.

The applicability of sentencing enhancements under the Guidelines and predicate

felonies under the ACCA are sentencing issues Adkins waived.3

 
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Adkins’s issue (7), also attacking the district court’s imposition of the ACCA,

is similarly waived, except to the extent Adkins raises a claim for ineffective assistance

of counsel. And we have “explain[ed] ordinarily, we do not address claims of

ineffective assistance of counsel on direct appeal because such claims usually involve

facts outside of the existing record and are therefore best addressed in postconviction

proceedings under 28 U.S.C. § 2255.” United States v. Jones, 586 F.3d 573, 576 (8th

Cir. 2009). We also do not address where, if anywhere, Adkins could raise his

ineffective assistance of counsel claims regarding these earlier state convictions.

Finally, Adkins argues in his issue (5) that his sentence is substantively

unreasonable. The government contends the appeal waiver forecloses this argument

as well. Without deciding whether Adkins waived his right to appeal the substantive

reasonableness of his sentence, we hold Adkins’s sentence was substantively

reasonable. Adkins was sentenced within his Guidelines range, and as this court has

often stated, “we accord a presumption of reasonableness to a sentence within the

advisory guideline range.” United States v. Vinton, 631 F.3d 476, 487 (8th Cir. 2011)

(citing Rita v. United States, 551 U.S. 338, 341 (2007)). Adkins’s substantive

reasonableness argument does not overcome the reasonableness presumption and is

unavailing. 

All that remains is Adkins’s suppression issue, which was specifically excluded

from the appeal waiver. This court reviews the district court’s ultimate Fourth

Amendment determination de novo, but reviews the underlying factual findings for

clear error. See United States v. Brewer, 624 F.3d 900, 905 (8th Cir. 2010). Adkins

argues the district court should have suppressed much of the evidence in his case

because he insists the evidence was obtained in violation of his Fourth Amendment

right to be free from unreasonable searches and seizures and his Fifth Amendment right

against self-incrimination. See U.S. Const. amends. IV, V. Specifically, Adkins

alleges the searches of his home conducted on September 9, September 10, November

16, and December 22, 2005, were unreasonable and a January 24, 2006, interrogation
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violated his Miranda rights. We have reviewed the record and find no legal error or

clearly erroneous factual finding in the district court’s order denying Adkins’s motion

to suppress. See 8th Cir. R. 47B.

III. CONCLUSION

We affirm in part and dismiss in part. 

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