                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2681
                                   ___________

United States of America,           *
                                    *
           Appellee,                *
                                    * Appeal from the United States
     v.                             * District Court for the
                                    * District of Minnesota.
Marcos Lopez Nunez, also known as   *
Marcos Nunez Lopez,                 *     [UNPUBLISHED]
                                    *
           Appellant.               *
                               ___________

                             Submitted: June 21, 2005
                                Filed: July 1, 2005
                                 ___________

Before BYE, RILEY, and COLLOTON, Circuit Judges.
                            ___________

PER CURIAM.

       Marcos Nunez (Nunez) appeals the 135-month sentence the district court1
imposed upon his plea of guilty to conspiring to distribute and possess with intent to
distribute methamphetamine. See 21 U.S.C. §§ 841(b)(1)(A), 846. Nunez’s counsel
moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967),
asserting Nunez’s criminal history was overstated, but Nunez waived his appeal rights
in his plea agreement. Nunez filed a pro se supplemental brief, arguing the two prior

      1
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
convictions for driving while intoxicated (DWI) should not have been assessed
criminal history points, because in each case he received probation and was not
represented by counsel; and the appeal waiver is invalid. Having reviewed the record
and found no waiver of appellate rights in the plea agreement, we address the merits
and affirm.
      The district court did not clearly err in departing under U.S.S.G. § 4A1.3(b)(1)
from a Category IV criminal history to a Category III (as opposed to Nunez’s
requested Category II), see United States v. Greger, 339 F.3d 666, 670 (8th Cir. 2003)
(standard of review); and did not err in counting the prior DWI convictions, see
U.S.S.G. § 4A1.2, comment. (n.2) (sentence of probation is to be treated as sentence
under § 4A1.1(c) (add 1 point for prior sentence not counted in (a) or (b)) unless
condition of probation required imprisonment of at least 60 days); United States v.
Nichols, 511 U.S. 738, 746-47 (1994) (holding an uncounseled misdemeanor
conviction is valid because no prison term was imposed, and the conviction may be
used to enhance a sentence for a subsequent offense).

      Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we find no nonfrivolous issues. Accordingly, we grant counsel’s motion to
withdraw, and we affirm.
                      ______________________________




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