United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1517
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Michael Adkins, *
*
Appellant. *
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Submitted: December 14, 2010
Filed: April 12, 2011
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Before RILEY, Chief Judge, BEAM and BENTON, Circuit Judges.
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RILEY, Chief Judge.
Pursuant to a plea agreement, Michael Adkins pled guilty to being a felon in
possession of ammunition in violation of 18 U.S.C. § 922(g)(1). The district court1
calculated an advisory United States Sentencing Guidelines (U.S.S.G. or Guidelines)
range of 188 to 235 months imprisonment and 3 to 5 years supervised release (level 31,
category VI). The district court sentenced Adkins to 235 months imprisonment and
5 years supervised release. Adkins appeals, and we affirm.
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
I. ISSUES
Adkins raises seven issues on appeal. He alleges the district court erred in
(1) denying his motion to suppress, (2) applying a four-level sentencing enhancement
for possession of a firearm in connection with a felony pursuant to U.S.S.G.
§ 2K2.1(b)(6), (3) ruling Adkins’s prior state breaking and entering conviction was a
crime of violence for the purposes of the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e), (4) ruling his prior state second degree burglary conviction was an
ACCA crime of violence, (5) imposing a substantively unreasonable sentence,
(6) applying a two-level enhancement, pursuant to U.S.S.G. § 2K2.1(b)(1)(A), because
the offense involved possessing five or more firearms, and (7) finding Adkins was an
armed career criminal when, in his previous state felony cases, Adkins’s counsel never
advised him about the ACCA before he pled guilty.
II. DISCUSSION
Most of Adkins’s arguments are foreclosed because Adkins waived them in his
plea agreement with the government.
When we review an appeal waiver, we must make two determinations:
that the issue falls within the scope of the waiver and that both the plea
agreement and the waiver were entered into knowingly and voluntarily.
Even if both of these determinations are decided in the affirmative, we
will not enforce a plea agreement waiver if enforcement would cause a
miscarriage of justice.
United States v. Selvy, 619 F.3d 945, 950 (8th Cir. 2010) (quoting United States v.
Snelson, 555 F.3d 681, 685 (8th Cir. 2009)). When Adkins pled guilty, the magistrate
judge,2 among other things, verified Adkins signed the plea agreement and was not
under duress or the influence of drugs or alcohol, and the court thoroughly explained
the terms of the appeal waiver. We determine Adkins entered into the appeal waiver
2
The Honorable James C. England, United States Magistrate Judge for the
Western District of Missouri.
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knowingly and intelligently, and enforcing the waiver’s terms would not result in a
miscarriage of justice. See Selvy, 619 F.3d at 951 (finding no miscarriage of justice
where the appeal issue fell within the waiver and the defendant entered into the waiver
knowingly and intelligently).
We enforce the appeal waiver as to Adkins’s appeal issues (2)-(4) and (6).
Among other things, the plea agreement states:
The defendant reserves the right to [appeal] . . . the district court’s order
denying the defendant’s Motion to Suppress. . . . [T]he defendant
expressly waives his right to appeal his sentence . . . on any ground,
except a sentence imposed in excess of the statutory maximum or an
illegal sentence, that is, sentencing error more serious than a
misapplication of the Sentencing Guidelines, an abuse of discretion, or
the imposition of an unreasonable sentence.
The applicability of sentencing enhancements under the Guidelines and predicate
felonies under the ACCA are sentencing issues Adkins waived.3
3
Because the ACCA alters the statutory maximum of the substantive crime in
this case, it might be argued the ACCA issues fall under the appeal waiver’s exception
for “a sentence imposed in excess of the statutory maximum.” Adkins does not raise
this argument, and it is therefore waived. See United States v. Greene, 513 F.3d 904,
906 (8th Cir. 2008) (“This Court routinely enforces the doctrine of waiver and
declines to address arguments a party fails to raise in its opening brief.”). In any
event, the argument fails because the plea agreement notified Adkins of the ACCA’s
statutory maximum of life imprisonment, which Adkins’s 235-month sentence does
not exceed. See United States v. Kelly, 18 F.3d 612, 616 (8th Cir. 1994) (interpreting
a particular term of the plea agreement in light of the whole document); see also
United States v. Yellow, 627 F.3d 706, 708 (8th Cir. 2010) (“Plea agreements are
contractual in nature and should be interpreted according to general contractual
principles.” (quoting United States v. Thompson, 403 F.3d 1037, 1039 (8th Cir.
2005))).
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Adkins’s issue (7), also attacking the district court’s imposition of the ACCA,
is similarly waived, except to the extent Adkins raises a claim for ineffective assistance
of counsel. And we have “explain[ed] ordinarily, we do not address claims of
ineffective assistance of counsel on direct appeal because such claims usually involve
facts outside of the existing record and are therefore best addressed in postconviction
proceedings under 28 U.S.C. § 2255.” United States v. Jones, 586 F.3d 573, 576 (8th
Cir. 2009). We also do not address where, if anywhere, Adkins could raise his
ineffective assistance of counsel claims regarding these earlier state convictions.
Finally, Adkins argues in his issue (5) that his sentence is substantively
unreasonable. The government contends the appeal waiver forecloses this argument
as well. Without deciding whether Adkins waived his right to appeal the substantive
reasonableness of his sentence, we hold Adkins’s sentence was substantively
reasonable. Adkins was sentenced within his Guidelines range, and as this court has
often stated, “we accord a presumption of reasonableness to a sentence within the
advisory guideline range.” United States v. Vinton, 631 F.3d 476, 487 (8th Cir. 2011)
(citing Rita v. United States, 551 U.S. 338, 341 (2007)). Adkins’s substantive
reasonableness argument does not overcome the reasonableness presumption and is
unavailing.
All that remains is Adkins’s suppression issue, which was specifically excluded
from the appeal waiver. This court reviews the district court’s ultimate Fourth
Amendment determination de novo, but reviews the underlying factual findings for
clear error. See United States v. Brewer, 624 F.3d 900, 905 (8th Cir. 2010). Adkins
argues the district court should have suppressed much of the evidence in his case
because he insists the evidence was obtained in violation of his Fourth Amendment
right to be free from unreasonable searches and seizures and his Fifth Amendment right
against self-incrimination. See U.S. Const. amends. IV, V. Specifically, Adkins
alleges the searches of his home conducted on September 9, September 10, November
16, and December 22, 2005, were unreasonable and a January 24, 2006, interrogation
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violated his Miranda rights. We have reviewed the record and find no legal error or
clearly erroneous factual finding in the district court’s order denying Adkins’s motion
to suppress. See 8th Cir. R. 47B.
III. CONCLUSION
We affirm in part and dismiss in part.
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