                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-1057
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Michael W. Smith,                       *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: September 25, 2009
                                Filed: October 30, 2009
                                 ___________

Before BYE, ARNOLD, and SMITH, Circuit Judges.
                            ___________

ARNOLD, Circuit Judge.

       Michael Smith appeals from his sentence of 293 months' imprisonment after he
pleaded guilty to producing child pornography, see 18 U.S.C. § 2251(a). He
maintains that the district court1 erred in determining his criminal history category
under the United States Sentencing Guidelines and that the government failed to keep
its promise to recommend that the district court sentence him to a term of 210 months.
We dismiss the appeal.



      1
        The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
       The government moved to dismiss this appeal because Mr. Smith waived his
right to appeal in his plea agreement. Section 2(C)(1)(b) of that agreement, as
relevant, provides that the defendant waives his right to appeal "all sentencing issues"
if the district court accepts the recommendations that the parties agreed to and
"sentences the defendant within that range." The difficulty is that while there is no
sentencing recommendation agreed to by the parties that the district court did not
accept in fixing Mr. Smith's sentence, there was no recommendation as to the
appropriate criminal history category and thus there was no recommended range. If
the promise were taken quite literally, therefore, the waiver would not apply in this
case because the sentence was not "within that range" (a recommended range being
nonexistent), but we think that only a very technical and thus inadmissible
construction of the agreement would lead to that conclusion. The manifest purpose
of the clause under discussion is to render a sentence unappealable unless the district
court did not accept a recommendation to it contained in the plea agreement. On this
reading, which seems to us the only reasonable one, it appears to us that the appeal
should be dismissed. See United States v. Andis, 333 F.3d 886 (8th Cir. 2003) (en
banc).

       Even if the foregoing provision of the plea agreement does not require us to
dismiss the appeal in its entirety, § 3F quite clearly bars Mr. Smith's appeal of the
district court's determination of his criminal history category, because that clause
states flatly that "all decisions as to the appropriate Criminal History Category by the
Court are final and not subject to appeal."

       Finally, assuming again that any part of this appeal could somehow avoid the
waiver in § 2(C)(1)(b) of the plea agreement, we see no merit in Mr. Smith's argument
that the government did not keep its promise to recommend that the district court
sentence him to a 210-month term. It is true that the government, after specifically
recommending the agreed-upon term, indicated that it had agreed to do so based on
an assumption that Mr. Smith's criminal history category would be lower than the one

                                          -2-
that the district court selected. Mr. Smith argues that this was a hint on the
government's part that it was actually less than enthusiastic about its recommendation,
thus undermining its supposed recommendation and acting contrary to the duty that
it undertook in the plea agreement. Perhaps this revelation on the government's part
might better have gone unspoken, but we are not inclined to hold on this basis that the
government broke its promise, especially since the district court found that the
government's counsel "did nothing today but ask me to impose a 210-month
sentence."

       The district court also specifically indicated that the government's hint, if it was
one, as to the sentence that it actually preferred had had no influence on the sentence
that the court ultimately fixed, and it gave reasons. That being the case, even if the
government violated its agreement here, the breach was harmless and so could not be
the basis for any relief to Mr. Smith. See United States v. E. V., 500 F.3d 747, 754-55
(8th Cir. 2007).

      Dismissed.
                         ______________________________




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