# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 11-2825

___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee

v. Earl D. Dowty lllllllllllllllllllll Defendant - Appellant

____________ Appeal from United States District Court

for the District of South Dakota - Pierre

____________ Submitted: October 15, 2012 Filed: October 26, 2012 [Unpublished]

____________ RILEY, Chief Judge, ARNOLD and GRUENDER, Circuit Judges.

____________ PER CURIAM. Earl D. Dowty pled guilty, pursuant to a written plea agreement, to being a felon in possession of a firearm, in vi olation of 18 U.S.C. § 922(g)(1). Dowtychallenges the district court’s 1 admission of certain evidence and his sentence. We grant the government’s motion to dismiss Dowty’s appeal based upon his valid and enforceable waiver of his appellate rights.
I. BACKGROUND Dowty pled guilty, pursuant to a written plea agreement, to being a felon in possession of a firearm. In the plea agreem ent, Dowty agreed to waive “all defenses and his right to appeal any non-jurisdictional issues,” except any decision by the [district court] to depart upward pursuant to the sentencing guidelines as well as the length of his sentence for a determination of its substantive reas onableness should the [district court] impose an upward departure or an upward variance pursuant to [1]8 U.S.C. § 3553(a). The district court engaged in a lengthy colloquy to ensure Dowty’s guilty plea was knowing and voluntary. Dowty acknowledged the appeal waiver “limited [his] right to appeal to jurisdictional issues and to in stances where the [distr ict court] has varied or departed upward in [his] sentence.” After calculating an advisory United Stat es Sentencing Guidelines range of 140 to 175 months imprisonment, the districtcourt imposed the statutory maximum sentence of 120 months imprisonment. See 18 U.S.C. § 924(a)(2).
II. DISCUSSION Dowty now appeals (1) his sentence as pr ocedurally improper and substantively unreasonable; and (2) in a pro se supplemental brief, the district court’s admission of certain evidence Dowty claims was seized in violation of the Fourth Amendment and South Dakota law.

1 The Honorable Roberto A. Lange, United St ates District Judge for the District of South Dakota. -2-The government moved to dismiss Dowty’s appeal, claiming the appeal is foreclosed by the appeal waiv er. We will enforce an app eal waiver if the government proves (1) “the appeal falls within the scope of the waiver”; (2) the defendant entered into the plea agreement and the waiver “ knowingly and voluntarily”; and (3) enforcing the waiver will not “result[] in a ‘miscarri age of justice.’” United States v. Sisco , 576 F.3d 791, 795 (8th Cir. 2009) (quo ting United States v. Andis , 333 F.3d 886, 889-90 (8th Cir. 2003)) (internal quotation marks omitted). Dowty’s appeal falls within the scope of the waiver in his plea agreement. Dowty’s arguments are non-jurisdictional, and the district court did not impose an upward departure or variance. Dowty’s cont ention the appeal waiver “is silent as to the reasonableness of [Dowty’s] senten ce” ignores the waiver’s plain language forbidding all non-jurisdictional appeals except in the limited circumstances of an upward departure or variance. Both Dowty’s guilty plea and his waiverof appellate rights were knowing and voluntary, as demonstrated by the district court’s extensive plea colloquy. See id. at 796 (concluding a plea agreement and waiverof appellate rights were knowing and voluntary when the defendan t indicated he read and understood the plea agreement and appeal waiver, discussed them with hi s attorney, was not coerced and entered into them voluntarily, and was not under the influence of drugs or narcotics). Dowty maintains not allowing “him to appeal the reasonableness of his sentence under 18 U.S.C. § 3553(a) at this time would cause a miscarriage of justice.” “[A]n allegation that the sentencing judge misapplied the Sentencing Guidelines or abused his or her discretion” does not indicate a miscarriage of justice and “is not subject to appeal in the face of a valid appeal waiver.” Andis , 333 F.3d at 892. We have reviewed the entire record, including the Presentence Investigation Report, from which Dowty withdrew his objections, and weconclude no injustice for Dowty resides in this case.
-3-III. CONCLUSION Dowty’s waiver of his appellate rights is valid and does not give rise to a miscarriage of justice. We grant the government’s motion to dismiss the appeal.

______________________________

-4-