                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-3546
                                   ___________

United States of America,               *
                                        *
              Appellee,                 * Appeal from the United States
                                        * District Court for the
         v.                             * District of South Dakota.
                                        *
Kirby McGhee,                           * [UNPUBLISHED]
                                        *
              Appellant.                *
                                   ___________

                             Submitted: May 18, 2009
                                Filed: June 22, 2009
                                 ___________

Before RILEY, SMITH, and BENTON, Circuit Judges.
                            ___________

PER CURIAM.

      Kirby McGhee challenges the within-Guidelines-range sentence the district
     1
court imposed after he pleaded guilty to witness tampering. In a brief filed under
Anders v. California, 386 U.S. 738 (1967), counsel argues that the court erred in
calculating McGhee’s base offense level and that the sentence is greater than
necessary to achieve the purposes of sentencing. McGhee has filed a pro se brief in
which he asserts that his offense level is based on unproven allegations and that his
counsel was ineffective.

         1
        The Honorable Karen E. Schreier, Chief Judge, United States District Court
for the District of South Dakota.
       We enforce the appeal waiver contained in McGhee’s plea agreement and
dismiss this appeal. See United States v. Berberich, 254 F.3d 721, 723-25 (8th Cir.
2001) (dismissing appeal based on waiver even though court informed defendant of
right to appeal at sentencing). The record indicates that McGhee entered into the plea
agreement and the waiver knowingly and voluntarily. Further, we conclude that this
appeal falls within the scope of the waiver and that enforcing the waiver would not
result in a miscarriage of justice. See United States v. Andis, 333 F.3d 886, 889-92
(8th Cir. 2003) (en banc) (describing conditions for enforcing appeal waiver and
discussing narrowness of miscarriage-of-justice exception; alleged misapplication of
Guidelines or abuse of discretion is not subject to appeal in face of valid appeal
waiver); United States v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per
curiam) (enforcing appeal waiver in Anders case). To the extent McGhee’s
ineffective-assistance claim falls outside the scope of the appeal waiver, we hold that
the claim is more properly raised in a 28 U.S.C. § 2255 motion. See United States v.
Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir. 2006).

      We have reviewed the record independently in accordance with Penson v. Ohio,
488 U.S. 75 (1988), and have found no nonfrivolous issues beyond the scope of the
appeal waiver.

      Accordingly, we grant counsel’s motion to withdraw, and we dismiss the
appeal.
                     ______________________________




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