Submitted: September 27, 2018
from United States District Court for the Western District of
Missouri - Springfield
LOKEN, BENTON, and SHEPHERD, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
Ackerley entered into a written plea agreement with the
government pursuant to which she pled guilty to one count of
conspiracy to distribute 100 grams or more of heroin, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and
846. Subject to certain exceptions, the agreement stipulated
that, in exchange for Ackerley's cooperation, any new
information Ackerley might provide about her own criminal
conduct would not be used against her in the determination of
her applicable Sentencing Guidelines range or the decision to
depart above her applicable range. The agreement also
contained a waiver of appellate rights. Prior to sentencing,
the government filed a motion to depart downward from the
applicable range, which stated, in relevant part, that
information Ackerley provided aided in establishing a base
offense level for her sentence. At sentencing, the government
reiterated that Ackerley's cooperation helped establish a
base offense level for her sentence. Sent. Tr. 8, ECF No.
295. The district court ultimately sentenced Ackerley to 234
months imprisonment. Ackerley contends for the first time on
appeal that the government breached the plea agreement
because it provided her self-incriminating proffered
statements to the probation office in order to support the
drug quantity calculations contained in the presentence
investigation report and to establish a base offense level
for her sentence. In response, the government argues Ackerley
has failed to meet her burden under plain-error review and
thus the appeal waiver should be enforced and her appeal
dismissed. Having jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a),  we enforce the appeal waiver and
dismiss the appeal.
"a defendant is allowed to waive appellate rights."
United States v. Lovelace, 565 F.3d 1080, 1084 (8th
Cir. 2009) (quoting United States v. Andis, 333 F.3d
886, 889 (8th Cir. 2003) (en banc)); see also 1A
Charles Alan Wright & Andrew D. Leipold, Federal
Practice and Procedure § 180 (4th ed. 2008)
("A plea agreement may include a waiver by defendant of
h[er] statutory right to appeal . . . ."). Ackerley
argues, however, that the government breached the agreement
and, therefore, the appeal waiver is unenforceable and her
appeal may proceed. "Issues concerning the interpretation
and enforcement of a plea agreement are reviewed de
novo." Lovelace, 565 F.3d at 1086-87 (quoting
United States v. Paton, 535 F.3d 829, 835 (8th Cir.
Ackerley did not object to either the calculated base offense
level or the drug quantities attributed to her in the
presentence investigation report, we review for plain error.
See id. Thus, Ackerley must show (1) error, (2) that
is plain, and (3) that affects her substantial rights.
See id. at 1087. "[I]f the above three prongs
are satisfied, [we have] the discretion to remedy
the error-discretion which ought to be exercised only if the
error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings." Puckett v.
United States, 556 U.S. 129, 135 (2009) (third
alteration in original) (internal quotation marks omitted);
see also United States v. Olano, 507 U.S. 725, 732
(1993) (noting that an appellate court cannot overturn a
judgment "unless" plain-error review applies or
"unless some other provision authorizes the error's
correction"). "Meeting all four prongs is
difficult, 'as it should be.'" Puckett,
556 U.S. at 135 (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 83 n.9 (2004)).
it being her burden, Ackerley has not identified which, if
any, of her proffered statements were allegedly used to
calculate the drug quantities contained in the presentence
investigation report and to establish her base offense level.
Nor can she rule out that the information used in the
presentence investigation report may have come from
independent sources, which was permissible under the plea
agreement. Ackerley explains that she does not have enough
information to determine if the government breached the plea
agreement and that the existing record before this Court is
insufficient to make such a determination.
explanation amounts to a fatal concession that she cannot
show error, much less "plain" error, from the
existing record. Ackerley requests we remand the case to
the district court for a hearing into whether the government
breached the plea agreement. This request, however, overlooks
the fact that this Court cannot grant relief unless Ackerley
satisfies all four prongs of plain-error review, see
Olano, 507 U.S. at 732, two of which she has conceded
she cannot establish based on the existing record. Moreover,
she does not provide "some other provision" that
would authorize relief. Id.; see also United
States v. Yijun Zhou, 838 F.3d 1007, 1015 (9th Cir.
2016) (Graber, J., concurring) ("The Supreme Court has
left very little room-if any at all-for the judicial creation
of exceptions to [plain-error review].").
assuming without deciding that Ackerley has established the
first two prongs of plain-error review, "remand is not
automatic." United States v. Olson, 667 F.3d
958, 964 (8th Cir. 2012) (Benton, J., dissenting). In this
case, Ackerley "must make a specific showing of
prejudice to satisfy the 'affecting substantial
rights' prong . . . ." Olano, 507 U.S. at
"Since the rights in the plea agreement relate to
sentencing, [Ackerley] must show that h[er] sentence was
affected by the breach." Lovelace, 565 F.3d at
1088 (citing Puckett, 556 U.S. at 142 n.4).
Specifically, she "must show a 'reasonable
probability, based on the appellate record as a whole, that
but for the error [s]he would have received a more favorable
sentence.'" Id. (quoting United States
v. Pirani, 406 F.3d 543, 552 (8th Cir. 2005) (en banc)
(internal quotation marks omitted)).
fails to establish prejudice under the third prong. She
states that the government's breach of the plea agreement
"not only affected her substantial rights it also
seriously affected the fairness, integrity, or public
reputation the of [sic] judicial proceedings."
Appellant's Br. 17. Such a conclusory statement, however,
is insufficient under plain-error review. Accord United
States v. Jackson, 220 Fed.Appx. 317, 330 (5th Cir.
2007); United States v. Ray, 147 Fed.Appx. 32, 36
(10th Cir. 2005). Indeed, to accept her statement as
satisfactory would turn plain-error review on its head;
"proving plain error prejudice 'should not be too
easy' and 'demand[s] strenuous exertion to get
relief.'" Pirani, 406 F.3d at 552
(alteration in original) (quoting Dominguez Benitez,
542 U.S. at 82). Furthermore, as explained above, Ackerley is
unable to point to the precise statements used in violation
of the plea agreement or to explain how the use of such
statements affected her sentence. See Puckett, 556
U.S. at 142 n.4. Ackerley does not respond to the
government's argument that the information used in the
presentence investigation report to establish her base
offense level was available from independent sources;
therefore, there was no need to use ...