United States v. Bobby Walker

1The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3982
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Angel M. Koski, *
* [UNPUBLISHED]
Defendant-Appellant. *
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Submitted: November 19, 2010
Filed: February 8, 2011
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Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
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PER CURIAM.
Pursuant to a written plea agreement, Angel M. Koski pleaded guilty to one
count of conspiring to manufacture methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1) and 846. The district court 1 sentenced her at the bottom of the
applicable Guidelines range to seventy-seven months' imprisonment followed by five
years' supervised release. Koski now appeals her sentence, arguing her sentence was
unreasonable, she should have received further reduction for mitigating circumstances,
and she should have been eligible for "safety valve" relief. We affirm.

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-2-
The plea agreement contains an appeal waiver, according to which Koski
waived any and all rights to appeal her conviction and sentence except the right to
seek post-conviction relief based upon ineffective assistance of counsel, the right to
appeal the district court's decision that she does not meet the requirements of United
States Sentencing Guidelines § 5C1.2 and 18 U.S.C. § 3553(f)(1)–(5), and the right
to appeal her conviction and sentence if the statute under which she was convicted
were later found invalid. We will enforce the appeal waiver because the appeal falls
within the scope of the waiver, the record shows the requisite knowledge and
voluntariness, and enforcing the waiver will not result in a miscarriage of justice. See
United States v. Andis, 333 F.3d 886, 889–92 (8th Cir. 2003) (en banc) (court should
enforce appeal waiver and dismiss appeal where it falls within scope of waiver, both
plea agreement and waiver were entered into knowingly and voluntarily, and no
miscarriage of justice would result).
Koski's only argument not barred by the appeal waiver is her claim that the
district court erred in finding that she is not eligible for the "safety valve" provision
set forth in 18 U.S.C. § 3553(f). The safety valve provision mandates that the court
sentence a defendant in accordance with the Guidelines without regard to any
statutory minimum sentence, if the court finds the defendant meets five statutory
requirements. See 18 U.S.C. § 3553(f). The first of the five requirements is "the
defendant does not have more than 1 criminal history point, as determined under the
sentencing guidelines." § 3553(f)(1). The presentence report assigned Koski sixteen
criminal history points under U.S.S.G. § 4A1.1, resulting in a criminal history
category of VI. Therefore, the district court did not err in finding Koski ineligible for
safety valve relief.
Accordingly, we affirm the judgment of the district court.
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