                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-1850
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                   Robert E. Cover

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                      for the District of Nebraska - Omaha
                                 ____________

                          Submitted: November 16, 2012
                             Filed: January 16, 2013
                                 ____________

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
                          ____________

SHEPHERD, Circuit Judge.

       Robert E. Cover pled guilty to possession of child pornography in violation of
18 U.S.C. § 2252(a)(4)(B). The offense carries a mandatory minimum sentence of
ten years imprisonment if the defendant has a prior conviction “under the laws of any
State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor . . . .” 18 U.S.C. § 2252(b)(2) (West Supp. 2012). Cover has a
prior conviction under a Nebraska statute criminalizing “[s]exual assault of a child.”
Neb. Rev. Stat. § 28-320.01. The district court1 held that the Nebraska statute
triggered application of the ten-year mandatory minimum and consequently sentenced
Cover to 120 months imprisonment pursuant to Cover’s conditional plea agreement.
Cover appeals his sentence, arguing that (1) the district court erred in finding the
mandatory minimum applied, (2) the district court erred in calculating the sentencing
guideline range, and (3) his sentence is substantively unreasonable. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.

                                           I.

      In 1998, Cover was convicted under a Nebraska statute that makes it a crime
for any person who is “at least nineteen years of age or older” to “subject[] another
person fourteen years of age or younger to sexual contact . . . .” Neb. Rev. Stat. § 28-
320.01(1). Nebraska defines sexual contact as follows:

      Sexual contact means the intentional touching of the victim’s sexual or
      intimate parts2 or the intentional touching of the victim’s clothing
      covering the immediate area of the victim’s sexual or intimate parts.
      Sexual contact shall also mean the touching by the victim of the actor’s
      sexual or intimate parts or the clothing covering the immediate area of
      the actor’s sexual or intimate parts when such touching is intentionally
      caused by the actor. Sexual contact shall include only such conduct
      which can be reasonably construed as being for the purpose of sexual
      arousal or gratification of either party. Sexual contact shall also include
      the touching of a child with the actor’s sexual or intimate parts on any
      part of the child’s body for purposes of sexual assault of a child . . . .


      1
       The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
      2
       The statute defines intimate parts as “the genital area, groin, inner thighs,
buttocks, or breasts.” Neb. Rev. Stat. § 28-318(2).

                                          -2-
Neb. Rev. Stat. § 28-318(5) (footnote added).

       In 2011, law enforcement officials executed a search warrant for Cover’s
residence and discovered images of child pornography on Cover’s computer. They
obtained the warrant after learning that Cover had been accessing images from a child
pornography website recently shut down by the government. Cover agreed to plead
guilty to possession of child pornography, but he argued that his 1998 Nebraska
conviction did not qualify as a predicate offense for purposes of triggering the ten-
year mandatory minimum under 18 U.S.C. § 2252(b)(2). Consequently, Cover and
the government entered into a plea agreement pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(C) that stated, in relevant part:

             Provided that the defendant has a prior conviction relating to
      aggravated sexual abuse, sexual abuse, or abusive sexual conduct
      involving a minor or ward the defendant shall be sentenced to the
      mandatory minimum sentence of 120 months. Defendant and the United
      States retain the right to appeal any adverse decision on the application
      of the mandatory minimum sentence.
             If the defendant is successful in challenging the application of his
      prior conviction on the ten year mandatory minimum sentence the
      parties agree that the defendant shall be sentenced to a term determined
      by the district court that is at least five years but not more than ten years.

The plea agreement further provided that with the exception of the mandatory
minimum issue, Cover “knowingly and expressly waives any and all rights to appeal
[his] conviction and sentence, including . . . a waiver of all motions, defenses, and
objections which [he] could assert to the charges or to the Court’s entry of Judgment
against [him], and including review pursuant to 18 U.S.C. § 3742 of any sentence
imposed.”




                                           -3-
       At Cover’s sentencing hearing, the district court held that the Nebraska
conviction did trigger application of the mandatory minimum sentence. The court
reasoned that although “there may be some factual dispute about what [Cover] really
did” in connection with the 1998 conviction, “the conviction itself for a crime of that
nature, as defined in the statute, does satisfy the elements of the prior conviction for
purposes of the ten-year statutory mandatory minimum.” Accordingly, the district
court sentenced Cover to 120 months imprisonment, as provided in his plea
agreement. Cover now appeals his sentence.

                                          II.

                                          A.

       Cover first argues that the district court erred in holding his prior Nebraska
conviction triggers the ten-year mandatory minimum sentence under section
2252(b)(2). We review this claim de novo. See United States v. Linngren, 652 F.3d
868, 869 (8th Cir. 2011). The mandatory minimum applies when the state conviction
“relat[es] to aggravated sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor . . . .” 18 U.S.C. § 2252(b)(2). “For a state conviction to relate to
sexual abuse of a minor, it must relate to the physical or nonphysical misuse or
maltreatment of a minor for a purpose associated with sexual gratification.”
Linngren, 652 F.3d at 869-70 (internal quotation marks omitted). “[I]f the full range
of conduct encompassed by the state criminal statute relate[s] to sexual abuse, then
the fact of conviction and the statutory definition establish by themselves that the
enhancement applies.” Id. at 870. However, if the state “statute criminalizes both
conduct that qualifies as a predicate offense and conduct that does not, we may refer
to the charging document, the terms of a plea agreement, the transcript of the
colloquy, jury instructions, and other comparable judicial records to determine the
basis for the guilty plea or verdict.” Id. at 870-71 (internal quotation marks omitted).



                                          -4-
       Here, Cover was convicted under a Nebraska statue that criminalizes an adult’s
“sexual contact” with “another person fourteen years of age or younger.” Neb. Rev.
Stat. § 28-320.01(1). Cover argues that this statute criminalizes a wide variety of
conduct that does not constitute aggravated sexual abuse, sexual abuse, or abusive
sexual conduct under section 2252(b)(2), and that we consequently must look to the
facts underlying his conviction to determine whether the mandatory minimum applies.
According to Cover, his Nebraska conviction does not trigger the mandatory
minimum because (1) his conviction was based on an Alford plea in which he never
admitted any of the underlying facts and (2) the exhibits submitted by the government
in the present case do not include sufficient information about the factual allegations
underlying his Nebraska conviction.

       In United States v. Stults, 575 F.3d 834 (8th Cir. 2009), we addressed whether
a defendant’s conviction for attempted second-degree3 sexual assault of a child under
this same Nebraska statute was sufficient to trigger the mandatory minimum under
section 2252(b)(2). Id. at 844-46. The issue in that case was whether a conviction
for attempt, rather than a conviction for a completed offense, was sufficient to trigger
the mandatory minimum. Id. at 844. After explaining that section 2252(b)(2) does
not require the predicate offense to involve actual harm or even physical touching,
we held that the conviction for attempt did qualify as a predicate offense. Id. at 845-
46. To the extent that Stults did not already decide the issue currently before us, we
hold that any conviction under 28-320.01 is sufficient to trigger the mandatory ten-

      3
        The statute specifies that “[s]exual assault of a child is in the second degree
if the actor causes serious personal injury to the victim,” while “[s]exual assault of a
child is in the third degree if the actor does not cause serious personal injury to the
victim.” Neb. Rev. Stat. § 28-320.01(2)-(3). The parties have not identified anything
in the record that specifies the degree of Cover’s conviction. This is not relevant to
our analysis, however, because all degrees of sexual assault of a child under the
Nebraska statute involve “sexual contact” with “another person fourteen years of age
or younger.” Neb. Rev. Stat. § 28-320.01(1).


                                          -5-
year minimum sentence under section 2252(b)(2). Nebraska law specifies that sexual
contact must involve “sexual or intimate parts” and “include[s] only such conduct
which can be reasonably construed as being for the purpose of sexual arousal or
gratification . . . .” Neb. Rev. Stat. § 28-318(5). This fits squarely within our
definition of sexual abuse under section 2252(b)(2), which requires that the
conviction “relate to the physical or nonphysical misuse or maltreatment of a minor
for a purpose associated with sexual gratification.” See Linngren, 652 F.3d at 869-70
(internal quotation marks omitted).

       Because we hold that all conduct criminalized by section 28-320.01 is
sufficient to trigger the ten-year mandatory minimum sentence under section
2252(b)(2), Cover’s remaining arguments about the factual basis for his conviction
fail. We need not look to the facts underlying Cover’s conviction, since the
conviction itself triggers the mandatory minimum under this statute. See Linngren,
652 F.3d at 870; Stults, 575 F.3d at 845-46. Moreover, to the extent that Cover is
arguing the analysis should be different because his Nebraska conviction involved an
Alford plea, “‘[i]t is well-established that an Alford plea, like other guilty pleas,
results in a conviction, and we have said that Alford pleas are indistinguishable from
other guilty pleas’ when determining whether a conviction qualifies as a predicate
offense to enhance a sentence.” Linngren, 652 F.3d at 871 n.5 (quoting United States
v. Vinton, 631 F.3d 476, 486 (8th Cir. 2011)). Thus, Cover’s 1998 Nebraska
conviction triggers application of the ten-year mandatory minimum.

                                          B.

      Cover next argues that the district court erred in calculating the guideline range
and that the resulting 120-month sentence was substantively unreasonable. The
government responds that with the exception of contesting whether the mandatory
minimum applies, Cover explicitly waived all other challenges to his sentence in his
plea agreement.

                                          -6-
      “We review de novo whether a defendant waived the right to appeal a
sentence.” United States v. Azure, 571 F.3d 769, 772 (8th Cir. 2009). “When
reviewing a purported waiver, we must confirm that the appeal falls within the scope
of the waiver and that both the waiver and plea agreement were entered into
knowingly and voluntarily.” United States v. Andis, 333 F.3d 886, 889-90 (8th Cir.
2003). “[T]he burden of proof is on the Government to demonstrate that a plea
agreement clearly and unambiguously waives a defendant’s right to appeal.” Id. at
890. Moreover, even where these conditions are satisfied, “we will not enforce a
waiver where to do so would result in a miscarriage of justice.” Id.

       Here, Cover waived the remaining challenges to his sentence. First, these
challenges clearly fall within the scope of the waiver, which stated that Cover waived
“any and all rights to appeal [his] conviction and sentence” except for the right to
appeal any adverse determination regarding applicability of the mandatory minimum.
Second, Cover does not claim that the plea agreement and waiver were anything but
knowing and voluntary. See Andis, 333 F.3d at 892 (declining to analyze this issue
when appellant did “not claim that the waiver was entered into unknowingly or
involuntarily”). Third, enforcing the waiver would not result in a miscarriage of
justice. As previously discussed, Cover’s Nebraska conviction triggered application
of a ten-year mandatory minimum. His Rule 11(c)(1)(C) plea agreement explicitly
provided for imposition of the mandatory minimum under these circumstances. The
district court did, in fact, impose this minimum. Thus, there has been no miscarriage
of justice here, and Cover’s remaining challenges to his sentence are waived. See id.
at 892 (“Any sentence imposed within the statutory range is not subject to appeal.
Specifically, an allegation that the sentencing judge misapplied the Sentencing
Guidelines or abused his or her discretion is not subject to appeal in the face of a
valid appeal waiver.”).




                                         -7-
                            III.

Accordingly, we affirm Cover’s sentence.
               ______________________________




                            -8-
