USA v. Troy Miller, No. 08-2446 (7th Cir. 2008)
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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted December 11, 2008 Decided December 11, 2008 Before JOHN L. COFFEY, Circuit Judge JOEL M. FLAUM, Circuit Judge MICHAEL S. KANNE, Circuit Judge No. 08 2446 UNITED STATES OF AMERICA, Plaintiff Appellee, Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. v. No. 3:06CR00038 014 TROY MILLER, Defendant Appellant. Richard L. Young, Judge. O R D E R In 2008 Troy Miller entered into an agreement to plead guilty to one count of conspiracy to possess with the intent to distribute cocaine. See 21 U.S.C. §§ 846, 841(a)(1). The parties agreed on page three of Miller s plea agreement to a specific sentence of 120 months imprisonment the mandatory minimum given the amount of cocaine and Miller s prior conviction for a felony drug offense. See 21 U.S.C. § 841(b)(1)(B); FED. R. CRIM. P. 11(c)(1)(C). The district court accepted the plea agreement and sentenced Miller, as agreed, to 120 months imprisonment. See FED. R. CRIM. P. 11(c)(3)(A). No. 08 2446 Page 2 Miller filed a notice of appeal, but the government has moved to dismiss on the ground that Miller waived his right to appeal in the plea agreement. See United States v. Mason, 343 F.3d 893 (7th Cir. 2003). Miller s lawyer concedes the point and agrees that the appeal should be dismissed. Miller himself opposes the government s motion. See CIR. R. 51(b). The appeal waiver aside, a defendant who agrees to a specific sentence cannot appeal the sentence imposed except in three narrow circumstances: if his guilty plea was involuntary, if the sentence he received is greater than the sentence he bargained for, or if his sentence was imposed in violation of law. See 18 U.S.C. § 3742(a)(1), (c)(1); United States v. Gibson, 490 F.3d 604, 607 (7th Cir. 2007); United States v. Cieslowski, 410 F.3d 353, 363 64 (7th Cir. 2005); United States v. Barnes, 83 F.3d 934, 941 (7th Cir. 1996). Miller does not want his plea set aside, eliminating the first possibility. The second possibility is not tenable because Miller s prison sentence tracks the agreement. As for the third possibility, Miller s sentence is the lowest permitted by law. See 21 U.S.C. § 841(b)(1)(B). Even if Miller s appeal was not precluded by § 3742(a)(1) and (c)(1), his plea agreement includes a clear and unambiguous appellate waiver, which is enforceable because the record shows that he knowingly and voluntarily entered into the agreement. See United States v. Linder, 530 F.3d 556, 561 (7th Cir. 2008); United States v. Blinn, 490 F.3d 586, 588 (7th Cir. 2007). Accordingly, we GRANT government s motion to DISMISS the appeal.
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