United States v. Vibanco-Sanchez

1The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1314
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
James P. Earl, * Western District of Missouri.
*
Appellant. * [UNPUBLISHED]
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Submitted: February 7, 2001
Filed: February 12, 2001
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Before HANSEN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
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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 court1
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 from a law enforcement officer, under U.S.S.G. § 3C1.2.

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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.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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