                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 11-2825
                        ___________________________

                            United States of America

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                                   Earl D. Dowty

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                    for the District of South Dakota - Pierre
                                 ____________

                           Submitted: October 15, 2012
                            Filed: October 26, 2012
                                 [Unpublished]
                                 ____________

RILEY, Chief Judge, ARNOLD and GRUENDER, Circuit Judges.
                            ____________

PER CURIAM.

      Earl D. Dowty pled guilty, pursuant to a written plea agreement, to being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Dowty
challenges the district court’s1 admission of certain evidence and his sentence. We
grant the government’s motion to dismiss Dowty’s appeal based upon his valid and
enforceable waiver of his appellate rights.

I.    BACKGROUND
      Dowty pled guilty, pursuant to a written plea agreement, to being a felon in
possession of a firearm. In the plea agreement, Dowty agreed to waive “all defenses
and his right to appeal any non-jurisdictional issues,” except

      any decision by the [district court] to depart upward pursuant to the
      sentencing guidelines as well as the length of his sentence for a
      determination of its substantive reasonableness should the [district court]
      impose an upward departure or an upward variance pursuant to [1]8
      U.S.C. § 3553(a).

The district court engaged in a lengthy colloquy to ensure Dowty’s guilty plea was
knowing and voluntary. Dowty acknowledged the appeal waiver “limited [his] right
to appeal to jurisdictional issues and to instances where the [district court] has varied
or departed upward in [his] sentence.”

      After calculating an advisory United States Sentencing Guidelines range of 140
to 175 months imprisonment, the district court imposed the statutory maximum
sentence of 120 months imprisonment. See 18 U.S.C. § 924(a)(2).

II.    DISCUSSION
       Dowty now appeals (1) his sentence as procedurally improper and substantively
unreasonable; and (2) in a pro se supplemental brief, the district court’s admission of
certain evidence Dowty claims was seized in violation of the Fourth Amendment and
South Dakota law.

      1
       The Honorable Roberto A. Lange, United States District Judge for the District
of South Dakota.

                                          -2-
       The government moved to dismiss Dowty’s appeal, claiming the appeal is
foreclosed by the appeal waiver. We will enforce an appeal waiver if the government
proves (1) “the appeal falls within the scope of the waiver”; (2) the defendant entered
into the plea agreement and the waiver “knowingly and voluntarily”; and (3) enforcing
the waiver will not “result[] in a ‘miscarriage of justice.’” United States v. Sisco, 576
F.3d 791, 795 (8th Cir. 2009) (quoting United States v. Andis, 333 F.3d 886, 889-90
(8th Cir. 2003)) (internal quotation marks omitted).

      Dowty’s appeal falls within the scope of the waiver in his plea agreement.
Dowty’s arguments are non-jurisdictional, and the district court did not impose an
upward departure or variance. Dowty’s contention the appeal waiver “is silent as to
the reasonableness of [Dowty’s] sentence” ignores the waiver’s plain language
forbidding all non-jurisdictional appeals except in the limited circumstances of an
upward departure or variance.

      Both Dowty’s guilty plea and his waiver of appellate rights were knowing and
voluntary, as demonstrated by the district court’s extensive plea colloquy. See id. at
796 (concluding a plea agreement and waiver of appellate rights were knowing and
voluntary when the defendant indicated he read and understood the plea agreement
and appeal waiver, discussed them with his attorney, was not coerced and entered into
them voluntarily, and was not under the influence of drugs or narcotics).

       Dowty maintains not allowing “him to appeal the reasonableness of his
sentence under 18 U.S.C. § 3553(a) at this time would cause a miscarriage of justice.”
“[A]n allegation that the sentencing judge misapplied the Sentencing Guidelines or
abused his or her discretion” does not indicate a miscarriage of justice and “is not
subject to appeal in the face of a valid appeal waiver.” Andis, 333 F.3d at 892. We
have reviewed the entire record, including the Presentence Investigation Report, from
which Dowty withdrew his objections, and we conclude no injustice for Dowty resides
in this case.

                                          -3-
III.  CONCLUSION
      Dowty’s waiver of his appellate rights is valid and does not give rise to a
miscarriage of justice. We grant the government’s motion to dismiss the appeal.
                        ______________________________




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