### The Honorable Lawrence L. Piersol, United States District 1 

### Judge for the District of South Dakota. __________ No. 96-1032

__________ United States of America, * * Plaintiff/Appellee, * * Appeal from the United States v. * District Court for the * District of South Dakota Gerald Greger, * * Defendant/Appellant. *

__________ Submitted: May 13, 1996 Filed: October 24, 1996

__________ Before RICHARD S. ARNOLD, Chief Judge, MAGILL, a nd MURPHY, Circuit Judges.

__________ MURPHY, Circuit Judge. Gerald Greger, a resident of Wagner, South Dakota, was charged under 18 U.S.C. § 2243(a) with having a sexual relationship with a minor mor e than four years younger than he. Greger pled guilty but reserved the righ t to appeal the issue of federal jurisdiction. The district court sentenced 1 himto eighteen months imprisonment, and he appealed from the judgment
. We affirm.
Greger argues that the federal court s lack jurisdiction in this case because the town of W agner is not located within the Yankton Sioux Indian Reservationand is not in Indian country. Although Wagner is within the Yankton reservation boundaries

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established by treaty in 1858, 11 Stat. 743, Greger argues that the tribe ceded jur isdiction over it and other parts of the reservation in a n agreement with the United States negotiated in 1892 and ratified by Congress in 1894. 28 Stat. 286, 314. The Unite d States responds that the 1858 treaty boundaries continue in force.

In Y ankton Sioux Tribe v. Southern Missouri Waste Managemen t Dist rict , No. 95-2647, also filed today, we conclude for the reason s detail edthere that the Yankton reservation remains defined by th e bounda ries established in 1858. Greger's jurisdictional argument is n o different from those presented in that case, and Wagner thus remains i n Indian Country as defined by 18 U.S.C. § 1151. There is federa l jurisdiction.
Greger al so attempts to appeal the restitution ordered by the court requiring him to pay $1,800 to the young woman with whom he was involved and who be came pregnant as a result. He argues that under 18 U.S.C
. §§ 3663 and 3664, any restitution award must be based on evidence of loss to the victim, that no such evidence of loss was produced, that the victim refused to seek resti tution, and that restitution was unnecessary because the victim has access to health care through the state and can seek child support in tribal or state court. He also complains that he was denied du e process because he was not informed before sente ncing that the court might impose restitution or about any evidence of loss to the victim.
The Unite d States argues that Greger waived his right to appeal all issues other than jurisdiction when he pled guilty and that he did no t object to the restitution order at sentencing. Greger does not disput e that he acknowledged at the change of plea hearing that he would not b e able to appeal from the sentence imposed by the court. So long as th e sentence is not in conflict with the negotiated agreement, a knowing and voluntary waiver of t he right to appeal from a sentence will be enforced. United States v. Rutan , 956 F.2d 827, 829-30 (8th Cir. 1992).

### Greger has not shown he would prevail on these issues in 2 

### any event. He had notice restitution was likely; the Presentence Investigation Report stated that restitution was mandatory under 18 U.S.C. § 2248 and that the court would have to determine the amount of the loss because the victim refused to seek restitution. Section 2248 is a mandatory restitution statute and applicable to his case so his arguments regarding discretionary restitution under 18 U.S.C. §§ 3663 and 3664 are not persuasive. Moreover, an award of $1,800, with monthly payments of $50, appears reasonable under the circumstances. See id. §§ 2248(b)(3), (b)(4)(B). -3- Gre ger claims that the sentence was in conflict with the ple a agree ment because that agreement was implicitly negotiated with th e understanding that th e sentencing hearing would be conducted according to law
. He contends that the hearing did not comply with the procedura l safeguards in 18 U.S.C. § 3664 and that he should therefore be permitted to appeal the restitution.
The recor d shows that Greger knowingly and intelligently waived his right to appeal all issues other than jurisdiction. The waiver wa s included in the plea agreement and discussed at some length at the change of p lea hearing. At the sentencing hearing the court pronounced th e sente nce including restitution without objection from Greger or hi s attorney, and also reviewed his waiver of the right to appeal and asked hi m if he understood. Greger responded affirmativel y. Since Greger knowingly and volun tarily waived his right to appeal any issue other tha n juri sdiction, we need not consider the merits of his arguments abou t restitution. Rutan , 956 F.2d at 829. 2
Accordingly, the judgment of the district court is affirmed. MAGILL, Circuit Judge, dissenting.

I resp ectfully dissent. For the reasons stated in my dissent i n Yank tonSioux Tribe v. South Dakota , No. 95-2647, I believe that th e Yankton Sioux Reservation was diminished by the Act of August 15, 1894, 28 Stat. 314. Because the reservation was diminished,

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there was no federal jurisdiction over this matter, and Greger's convictio n should be vacated. Accordingly, I would reverse the district court.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.