United States v. James P. Earl

2 F. App'x 631

Opinion

PER CURIAM.

James Earl pleaded guilty to aiding and abetting the manufacture of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and the district court 1 sentenced him to eighty-seven months imprisonment and four years supervised release. He challenges on appeal, as he did below, the application of an enhancement for recklessly creating a substantial risk of death or serious bodily injury to another person in the course of fleeing irom a'law enforcement officer, under U.S.S.G. § 3C1.2.

As part of his plea agreement, Earl waived his right to appeal his sentence unless the district court departed upward from the Sentencing Guidelines range, imposed a sentence exceeding the statutory maximum sentence, or violated law other than the Guidelines. We conclude that Earl’s waiver was knowing and voluntary.

Earl was assisted by counsel at the change-of-plea and sentencing hearings, and counsel reminded Earl of the appeal waiver when they reviewed the plea agreement at the change-of-plea hearing. See United States v. Michelsen, 141 F.3d 867, 871 (8th Cir.1998) (appeal waiver is enforceable so long as it resulted from knowing and voluntary decision); United States v. Greger, 98 F.3d 1080, 1081-82 (8th Cir. 1996) (waiver was knowing and intelligent where it was included in plea agreement and it was discussed at change-of-plea hearing). The court’s statement at the sentencing hearing that Earl could appeal his sentence doesn’t invalidate Earl’s appeal waiver. See Michelsen, 141 F.3d at 871-872 (citations omitted).

Because Earl’s sentence was not an upward departure from the Guidelines range, did not exceed the statutory maximum sentence, and did not violate any other non-Guidelines sentencing law, we enforce his promise not to appeal by dismissing his appeal. Accordingly, we affirm the judgment of the district court.

1 . The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri.