The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER GRANTING GOVERNMENT'S MOTION TO DISMISS APPEAL
Before the Court is the defendant, David Gordon Ristow's "Notice of Appeal and Specifications of Error" filed on July 6, 2011, and the Government's "Motion to Dismiss Appeal" filed on July 7, 2011. See Docket Nos. 15 and 16. Ristow filed a response in opposition to the Government's motion on July 8, 2011. See Docket No. 17. For the reasons explained below, the Government's motion is granted.
On June 14, 2011, Ristow was charged by way of criminal complaint with the misdemeanor offense of illegal entry and concealment of facts in violation of 18 U.S.C. § 1325(a)(1) & (2). See Docket No. 1. On June 13, 2011, Ristow allegedly concealed himself underneath a blanket while crossing the Portal, North Dakota Port of Entry. Ristow had previously been denied entry into the United States because of his criminal record and was currently wanted in Ottawa, Ontario, Canada on a bench warrant for failure to appear and breach of undertaking. The offense carries maximum penalties of six months imprisonment, a $5,000 fine, five years probation, and a $10 special assessment. See Docket No. 11, pp. 2-3.
On June 28, 2011, the parties filed a plea agreement. See Docket No. 11. The plea agreement includes the following paragraph:
20. Appeal Waiver: Defendant waives his right to appeal his conviction and the Court's entry of judgment against him, including an appeal of any motions, defenses, probable cause determinations, and objections which he has asserted in this case. Defendant also waives any right to appeal his sentence under 18 U.S.C. § 3742(a) as recognized and permitted by United States v. Andis, 333 F.3d 886 (8th Cir. 2003). Expressly excluded from this waiver of appeal is Defendant's right to appeal an illegal sentence. Defendant agrees to waive any right to contest his conviction and sentence in any post-conviction proceeding pursuant to 28 U.S.C. § 2255 with the exception of any claim of ineffective assistance of counsel and any claim pursuant to 28 U.S.C. § 2255, ¶6(3) premised on a right newly recognized by the United States Supreme Court.
See Docket No. 11, p. 7. On June 30, 2011, Magistrate Judge Charles S. Miller, Jr. accepted Ristow's guilty plea and sentenced him to three months imprisonment. See Docket Nos. 13 and 14.
On July 6, 2011, Ristow filed a "Notice of Appeal and Specifications of Error." See Docket No. 15. Ristow contends the sentence imposed by Judge Miller is unreasonable because Ristow's prior criminal offenses took place in Canada a number of years ago, Ristow has expressed remorse for his actions, and he does not wish to re-enter the United States. On July 7, 2011, the Government filed a "Motion to Dismiss Appeal." See Docket No. 16. The Government contends that Ristow's appeal to the district court is barred by the appeal waiver in the plea agreement. Ristow contends that he did not waive the right to appeal to the district court under Rule 58(g)(2) of the Federal Rules of Criminal Procedure.
The Eighth Circuit Court of Appeals has explained that the right to appeal is not a constitutional right, it is "purely a creature of statute" and can be waived. United States v. Andis, 333 F.3d 886, 889 (8th Cir. 2003) (citing Abney v. United States, 431 U.S. 651, 656 (1977); 18 U.S.C. § 3742)). An appeal waiver in a plea agreement is enforceable if "(1) the appeal sought is within the scope of the waiver, (2) the waiver was knowing and voluntary, and (3) the enforcement of the waiver will not result in a miscarriage of justice." United States v. Cervantes, 420 F.3d 792, 794 (8th Cir. 2005) (citing Andis, 333 F.3d at 889-90); see also United States v. Adkins, 636 F.3d 432, 433 (8th Cir. 2011) (citing United States v. Selvy, 619 F.3d 945, 950 (8th Cir. 2010)).
A defendant's right to appeal a sentence is described in 18 U.S.C. § 3742, which provides, in pertinent part:
(a) Appeal by a defendant. A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence--(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under ...