United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-3240

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Northern District of Iowa. 

Kevin C. Nelson, *

* [UNPUBLISHED]

Appellant. *

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Submitted: June 11, 2012

Filed: July 17, 2012

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Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.

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PER CURIAM.

Kevin Nelson pleaded guilty to conspiracy to manufacture and distribute 50

grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. 

This offense carries a statutoryminimumsentence of 120 months’ imprisonment. See

21 U.S.C. § 841(b)(1)(A)(viii). Because Nelson provided substantial assistance in the

investigation of other persons, the government moved pursuant to USSG § 5K1.1 and

18 U.S.C. § 3553(e) to reduce his sentence below the statutoryminimum. The district
court granted the motion and sentenced Nelson to 48 months’ imprisonment and five

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years of supervised release.

A reduction below the statutoryminimumsentence pursuant to § 3553(e) must

be based exclusively on assistance-related considerations. United States v. Burns,

577 F.3d 887, 894 (8th Cir. 2009) (en banc). In this case, the district judge told the

defendant that he disagreed with the law, and would give “a substantially lower

sentence” if he had discretion to reduce the sentence further based on the factors set

forth in 18 U.S.C. § 3553(a). Nelson now appeals, arguing that the district court

should have relied on the § 3553(a) factors to reduce his sentence further.

We do not reach the merits of this contention, because Nelson waived his right

to appeal the sentence on this ground. In his plea agreement, Nelson waived the right

to appeal the sentence imposed, except in the following limited circumstances: “(1)

if the sentence is not in accordance with this plea agreement; (2) if the sentence

imposed exceeds the maximum statutory penalty; and (3) if the sentence is

constitutionally defective.” R. Doc. 51, at 15 ¶ 41. Nelson argues that his sentence

is “constitutionally defective,” because United States v. Booker, 543 U.S. 220 (2005),

and its progeny “have demonstrated that there have been too many restrictions

place[d] upon the authority of the sentencing court.” Reply Br. 1. The Sixth

Amendment, however, does not forbid all determinate sentencing schemes. Blakely

v. Washington, 542 U.S. 296, 308 (2004). The Supreme Court recognized the policy

goals of legislaturesto make sentences proportional to the gravity of the offenses and

to achieve parity among defendants, and emphasized that nothing in its Sixth

Amendment decisions “impugns those salutary objectives.” Id. This court held after

Booker and Gall v. United States, 552 U.S. 38 (2007), that district courts are still

The Honorable Mark W. Bennett, United States District Judge for the

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Northern District of Iowa.

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bound by the strictures set forth in § 3553(e). Burns, 577 F.3d at 894. Therefore, the

sentence imposed in this case is not “constitutionally defective.”

The ground on which Nelson seeks to appeal falls within the scope of the

appeal waiver. Nelson does not dispute that his waiver was knowing and voluntary,

and he does not suggest that enforcement of the agreement would result in a

miscarriage of justice. We therefore enforce the waiver. See United States v. Andis,

333 F.3d 886 (8th Cir. 2003) (en banc). The appeal is dismissed.

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