27 F.4th 1367
8th Cir.2022Background:
- Bryan Howard pleaded guilty to conspiring to distribute ≥500 grams of methamphetamine and signed a plea agreement containing a broad appeal waiver, excepting only upward departures/variances and substantive-reasonableness review of an upward departure/variance.
- At sentencing the district court classified Howard as a career offender based on prior convictions (one from 2007 and one dated June 5, 2018), producing an advisory Guidelines range of 262–327 months.
- The court applied firearm and career-offender enhancements, reduced for acceptance, and sentenced Howard to 262 months, consecutive to state terms; Howard did not object to the career-offender designation at sentencing and agreed it mooted other objections.
- On appeal counsel filed an Anders brief claiming substantive unreasonableness; the court ordered supplemental briefing whether the career-offender designation (and the June 2018 predicate) was correct and whether the appeal waiver foreclosed review.
- The government conceded the career-offender classification was plain error but argued Howard’s appeal waiver was valid and that enforcing it would not produce a miscarriage of justice because the sentence was within the statutory range.
- The panel held the appeal waiver valid, applicable, and not producing a miscarriage of justice; it dismissed the appeal and granted counsel’s motion to withdraw. Concurring judges voiced concern that an obvious error went uncorrected and criticized the government’s refusal to seek remand.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Howard was properly classified as a career offender | Howard: career-offender classification was incorrect (June 2018 conviction does not qualify) | Government: later concedes plain error but contends waiver bars review | Court did not reach merits; appeal barred by valid waiver and dismissed |
| Whether the appeal waiver is valid and enforceable | Howard: waiver should not bar review because court effectively imposed an upward departure/variance by misapplying Chapter 4 | Government: waiver was knowing, voluntary, and covers non-jurisdictional issues | Waiver valid and knowingly entered; scope covers Howard’s claims |
| Whether enforcing the waiver would be a miscarriage of justice | Howard: enforcing waiver would allow an illegal/erroneous sentence to stand | Government: no miscarriage because sentence is within statutory range; misapplication of Guidelines is not jurisdictional | Miscarriage-of-justice exception not met; dismissal enforced |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (framework for counsel withdrawing and filing brief asserting no meritorious appeal)
- Penson v. Ohio, 488 U.S. 75 (1988) (appellate court independent review after Anders brief)
- United States v. Andis, 333 F.3d 886 (8th Cir. 2003) (en banc) (standards for enforcing appellate waivers and the narrow miscarriage-of-justice exception)
- United States v. Scott, 627 F.3d 702 (8th Cir. 2010) (de novo review of waiver validity and applicability)
- United States v. McIntosh, 492 F.3d 956 (8th Cir. 2007) (interpret waiver scope by plain language of plea agreement)
- United States v. Reeves, 410 F.3d 1031 (8th Cir. 2005) (career-offender challenge falls within broad appeal waiver language)
- United States v. Guice, 925 F.3d 990 (8th Cir. 2019) (misapplication of Guidelines is not a miscarriage of justice under a waiver)
- United States v. Pierre, 912 F.3d 1137 (8th Cir. 2019) (miscarriage-of-justice exception principally permits appeals of illegal sentences exceeding statutory maximum)
- United States v. Guzman, 707 F.3d 938 (8th Cir. 2013) (enforcing waiver to preclude appeal of sentence below statutory maximum is not a miscarriage of justice)