United States Court of Appeals

For the Eighth Circuit

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No. 18-1728

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Carlos Joe Grady

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Missouri - Cape Girardeau

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Submitted: April 15, 2019

Filed: July 26, 2019

[Published]

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Before SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.

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PER CURIAM.

Pursuant to a written agreement containing an appeal waiver, CarlosJoe Grady

pleaded guilty to one count of possession with intent to distribute 50 grams or more

of a mixture or substance containing methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B)(viii). At sentencing, and over Grady’s objection, the
district court found that Grady had two prior felony convictions for a controlled

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substance offense and applied the career offender enhancement under United States

Sentencing Guidelines § 4B1.1(a) (2016), resulting in a Guidelines range of 188 to

235 months’ imprisonment. The court sentenced Grady to 188 months, and he now

appeals his sentence on various grounds.

I

Grady asserts that the district court committed three sentencing errors: (1)

finding that two of his prior felony convictions “counted separately” for the purposes

of his Criminal History under the Guidelines, triggering the career offender

enhancement;(2) failing to adequately explain the reasons for its chosen sentence and

its rejection of Grady’s request for a downward variance; and (3) failing to consider

any ofthe 18 U.S.C. § 3553(a) factors, thereby imposing a substantively unreasonable

sentence. The government argues that other than Grady’s challenge to the career

offender enhancement, Grady’s claims are barred by the appeal waiver in his plea

agreement. We first analyze whether the appeal waiver bars Grady’s second and third

claims and then address the merits of his challenge to his career offender status.

Grady’s plea agreement provides, “[i]n the event the Court accepts the plea,

and after determining the appropriate Total Offense Level, sentences the defendant

within or below the corresponding range, then, as a part of this agreement, the

defendant hereby waives all rights to appeal all sentencing issues other than Criminal

History.” We will enforce the waiver of rights to appeal when the government

demonstratesthat the issuesraised on appeal are “within the scope of the waiver,” the

plea agreement and waiver were entered into “knowingly and voluntarily,” and

enforcement of the waiver would not “result in a miscarriage of justice.’” United

States v. Andis, 333 F.3d 886, 889–90 (8th Cir. 2003) (en banc). As the government

The Honorable Stephen N. Limbaugh, Jr., United States DistrictJudge for the

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Eastern District of Missouri.

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contends, Grady’s claims that his sentence is substantively unreasonable and that the

district court failed to adequately explain its chosen sentence and its rejection of his

request for a variance are “sentencing issues other than Criminal History.” They thus

fall within the scope of Grady’s waiver. The career offender issue, on the other hand,

does not.

We also conclude that Grady’s plea and waiver were entered into knowingly

and voluntarily. At the change of plea hearing, the district court confirmed that

Grady had read his plea agreement, reviewed it “in detail” with his counsel, and

understood its contents. The court also asked Grady if his guilty plea wasthe product

of force, coercion, or threats, to which Grady replied, “No.” The court then addressed

the appeal waiver, explaining to Grady that if the court imposed a sentence within or

below the Guidelines range, Grady waived his right to appeal his sentence, subject

to only one exception: Grady could appeal “the determination about [his] criminal

history,” that is, “[his] criminal record [] and nothing else.” Grady replied that he

agreed. Based on this record, we are satisfied that Grady entered into his plea and

waived his appellate rights knowingly and voluntarily. See Andis, 333 F.3d at

890–91 (“One important way a district court can help ensure that a plea agreement

and corresponding waiver are entered into knowingly and voluntarily is to properly

question a defendant about his or her decision to enter that agreement and waive the

right to appeal.”); see also United States v. Guzman, 707 F.3d 938, 942 (8th Cir.

2013) (concluding that plea agreement and waiver were knowing and voluntarywhere

district court confirmed that defendant had read plea agreement with counsel and

understood the appeal waiver). Furthermore, we conclude that enforcement of the

waiver would not result in a miscarriage of justice. See Andis, 333 F.3d at 891–92. 

We thus enforce Grady’s appeal waiver as to his second and third claims, and we 

turn to his challenge to the Criminal History determinations supporting the district

court’s application of the career offender enhancement.

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II

A defendant may be classified as a career offender if, among other things, he

“has at least two prior felony convictions of either a crime of violence or a controlled

substance offense.” USSG § 4B1.1(a). The district court determined that Grady’s

2007 and 2010 Missouri convictions for distribution of a controlled substance each

qualified as a prior felony conviction for a controlled substance offense. Like he did

before the district court, Grady argues on appeal that these two convictions should

count as just one qualifying conviction, not two. “We review the district court’s

interpretation and application of the Sentencing Guidelines de novo and review its

application of the Guidelines to the facts for clear error.” United States v. Armstrong,

782 F.3d 1028, 1036 (8th Cir. 2015). 

Under the Guidelines, “[t]he term ‘two prior felony convictions’ means (1) the

defendant committed the instant offense of conviction subsequent to sustaining at

least two felony convictions of . . . a controlled substance offense . . . , and (2) the

sentences for at least two of the aforementioned felony convictions are counted

separately under the provisions of § 4A1.1(a), (b), or (c).” § 4B1.2(c). Section

4A1.2(a)(2), in turn, specifies that to apply § 4A1.1(a)–(c), “[p]riorsentences always

are counted separately if the sentences were imposed for offenses that were separated

by an intervening arrest.” Here, Grady’s 2007 and 2010 convictions were separated

by an intervening arrest and thus were properly counted separately. As set forth in

the Presentence Investigation Report, Grady’s 2007 conviction resulted from a

February 2007 arrest. Almost three years later, Grady was arrested again, leading to

his 2010 conviction. Accordingly, the district court correctlycounted each conviction

as a predicate offense and properly applied the career offender enhancement. See

Armstrong, 782 F.3d at 1036–37 (holding that two convictions counted as predicate

controlled substance offenses because the convictions were separated by an

intervening arrest).

Accordingly, we affirm Grady’s sentence.

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