United States v. Kevin Nelson

Filing

PER CURIAM OPINION FILED - THE COURT: DIANA E. MURPHY, MICHAEL J. MELLOY and STEVEN M. COLLOTON (UNPUBLISHED) [3932409] [11-3240]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-3240
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United States of America,
Appellee,
v.
Kevin C. Nelson,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* Northern District of Iowa.
*
* [UNPUBLISHED]
*
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Submitted: June 11, 2012
Filed: July 17, 2012
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Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.
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PER CURIAM.
Kevin Nelson pleaded guilty to conspiracy to manufacture and distribute 50
grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846.
This offense carries a statutory minimum sentence of 120 months’ imprisonment. See
21 U.S.C. § 841(b)(1)(A)(viii). Because Nelson provided substantial assistance in the
investigation of other persons, the government moved pursuant to USSG § 5K1.1 and
18 U.S.C. § 3553(e) to reduce his sentence below the statutory minimum. The district

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court1 granted the motion and sentenced Nelson to 48 months’ imprisonment and five
years of supervised release.
A reduction below the statutory minimum sentence pursuant to § 3553(e) must
be based exclusively on assistance-related considerations. United States v. Burns,
577 F.3d 887, 894 (8th Cir. 2009) (en banc). In this case, the district judge told the
defendant that he disagreed with the law, and would give “a substantially lower
sentence” if he had discretion to reduce the sentence further based on the factors set
forth in 18 U.S.C. § 3553(a). Nelson now appeals, arguing that the district court
should have relied on the § 3553(a) factors to reduce his sentence further.
We do not reach the merits of this contention, because Nelson waived his right
to appeal the sentence on this ground. In his plea agreement, Nelson waived the right
to appeal the sentence imposed, except in the following limited circumstances: “(1)
if the sentence is not in accordance with this plea agreement; (2) if the sentence
imposed exceeds the maximum statutory penalty; and (3) if the sentence is
constitutionally defective.” R. Doc. 51, at 15 ¶ 41. Nelson argues that his sentence
is “constitutionally defective,” because United States v. Booker, 543 U.S. 220 (2005),
and its progeny “have demonstrated that there have been too many restrictions
place[d] upon the authority of the sentencing court.” Reply Br. 1. The Sixth
Amendment, however, does not forbid all determinate sentencing schemes. Blakely
v. Washington, 542 U.S. 296, 308 (2004). The Supreme Court recognized the policy
goals of legislatures to make sentences proportional to the gravity of the offenses and
to achieve parity among defendants, and emphasized that nothing in its Sixth
Amendment decisions “impugns those salutary objectives.” Id. This court held after
Booker and Gall v. United States, 552 U.S. 38 (2007), that district courts are still

1

The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa.
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bound by the strictures set forth in § 3553(e). Burns, 577 F.3d at 894. Therefore, the
sentence imposed in this case is not “constitutionally defective.”
The ground on which Nelson seeks to appeal falls within the scope of the
appeal waiver. Nelson does not dispute that his waiver was knowing and voluntary,
and he does not suggest that enforcement of the agreement would result in a
miscarriage of justice. We therefore enforce the waiver. See United States v. Andis,
333 F.3d 886 (8th Cir. 2003) (en banc). The appeal is dismissed.
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