                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-1884
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
Richard W. Howard III,                  *
                                        *      [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: April 29, 2008
                                Filed: May 2, 2008
                                 ___________

Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

       Richard W. Howard III (Howard) appeals the 84-month prison sentence the
district court1 imposed upon him after Howard pled guilty to engaging in a sexual act
with someone who was physically unable to comprehend or resist the sexual act, in
violation of 18 U.S.C. §§ 1153, 2242(2), and 2246(2)(A). Howard’s counsel moved
to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967),
challenging the reasonableness of Howard’s sentence.



      1
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
       Howard pled guilty pursuant to a plea agreement containing a waiver of any
right to appeal, except Howard could challenge the reasonableness of his sentence if
the court imposed a sentence above the applicable advisory Guidelines imprisonment
range. The district court did not sentence Howard above the applicable Guidelines
range and in fact sentenced him at the bottom of the range with additional credit for
the time he had served in tribal custody. We now enforce the appeal waiver because
the record establishes Howard knowingly and voluntarily entered into the plea
agreement and waiver; the appeal falls within the scope of the waiver; and no injustice
would result from enforcing the waiver. See United States v. Andis, 333 F.3d 886,
889-92 (8th Cir. 2003) (en banc) (discussing enforceability of appeal waiver); United
States v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam) (enforcing
appeal waiver in Anders case).

      Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues for appeal beyond the scope of the waiver.
Therefore, we affirm Howard’s sentence, dismiss the appeal, and grant counsel’s
motion to withdraw.
                       ______________________________




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