No. 21-3863 ___________________________

United States of America

Plaintiff Appellee

v.

Rene Lugo-Barcenas

Defendant Appellant ____________

Appeal from United States District Court for the Western District of Missouri - Kansas City ____________

Submitted: December 12, 2022 Filed: January 13, 2023 ____________ Before SMITH, Chief Judge, ARNOLD and STRAS, Circuit Judges. ____________ ARNOLD, Circuit Judge.

Rene Lugo-Barcenas pleaded guilty to conspiring to distribute at least 50 grams of a mixture or substance containing methamphetamine, see 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846, and as part of his plea agreement he agreed to waive some of his rights to appeal his conviction and sentence. He nonetheless appeals his sentence, arguing that the district court1 erred in applying the Sentencing Guidelines despite their harsh and disparate treatment of methamphetamine offenders, erred in treating the Guidelines as mandatory, and imposed an unreasonable sentence. We conclude that the appeal waiver bars most of his appeal. As for the remainder, we affirm.

At Lugo-Barcenas's sentencing hearing, the parties disputed the amount of methamphetamine attributable to him for purposes of calculating the Guidelines's recommended sentencing range. Defense counsel maintained "that the methamphetamine guidelines . . . are unduly harsh" and so objected "to the guidelines in general." When the court asked defense counsel whether her contentions weren't "really more arguments as to what's a reasonable and appropriate sentence" since "the guidelines are the guidelines," defense counsel responded that the court was "absolutely correct." But before the court completed its calculation of the Guidelines range, defense counsel again objected to the use of the methamphetamine guidelines, to which the court responded, "I believe that it's my obligation to apply the sentencing guidelines as they're set forth, and you're asking me to ignore that or to find that . . . I am not required to make a calculation pursuant to the guidelines, and I'm not going to do that. So I guess that objection or whatever it is is denied." The court calculated the recommended sentencing range to be 168–210 months' imprisonment and, after defense counsel again argued that the Guidelines treat methamphetamine offenders too harshly, the court imposed a sentence at that bottom of that range.

The government maintains that we should enforce the appeal waiver in the parties' plea agreement and dismiss the entire appeal. As relevant, that agreement provides that Lugo-Barcenas "expressly waives his right to appeal his sentence, directly or collaterally, on any ground except claims of . . . an illegal sentence." It then states that "[a]n 'illegal sentence' includes a sentence imposed in excess of the

1 The Honorable Gary A. Fenner, United States District Judge for the Western District of Missouri.

-2- statutory maximum, but does not include less serious sentencing errors, such as a misapplication of the Sentencing Guidelines, an abuse of discretion, or the imposition of an unreasonable sentence." The government bears the "burden to prove that the plea agreement clearly and unambiguously waives a defendant's right to appeal, and we construe any ambiguities in the agreement against the government." See United States v. Guice, 925 F.3d 990, 992 (8th Cir. 2019).

Lugo-Barcenas offers two primary lines of argument to support his assertion that the distri