                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-3361
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              * Appeal from the United States
                                         * District Court for the
      v.                                 * Eastern District of Missouri.
                                         *
TyDarryl Griffin,                        *       [PUBLISHED]
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: April 12, 2005
                                  Filed: August 15, 2005
                                   ___________

Before LOKEN, Chief Judge, WOLLMAN and BEAM, Circuit Judges.
                             ___________

PER CURIAM.

       A few days before the Supreme Court decided Blakely v. Washington, 542 U.S.
296 (2004), TyDarryl Griffin pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). In the plea agreement, Griffin admitted
a prior felony drug conviction and waived “all rights to appeal all non-jurisdictional
issues including, but not limited to . . . whatever sentence is imposed,” except
departure issues. At sentencing, Griffin argued that Blakely rendered the Guidelines
unconstitutional and precluded the district court from considering his prior conviction
because the government did not plead and prove it. The district court1 overruled these
objections and sentenced Griffin to 64 months in prison and two years of supervised
release. Griffin appeals. Applying our appeal waiver decisions in light of the
subsequent controlling decision in United States v. Booker, 125 S. Ct. 738 (2005), we
dismiss the appeal.

       Griffin argues that we should ignore the appeal waiver in his plea agreement
because he entered into the agreement prior to the unexpected decision in Blakely.
However, “[t]he fact that [Griffin] did not anticipate the Blakely or Booker rulings
does not place the issue outside the scope of his waiver.” United States v. Killgo, 397
F.3d 628, 629 n.2 (8th Cir. 2005). The non-jurisdictional sentencing issue Griffin
seeks to raise on appeal falls within the scope of the appeal waiver. Griffin does not
challenge the appeal waiver as not knowing and voluntary or as a miscarriage of
justice. See United States v. Andis, 333 F.3d 886, 890-92 (8th Cir.) (en banc), cert.
denied, 540 U.S. 997 (2003). Therefore, we must enforce the appeal waiver and
dismiss the appeal.2

      The appeal is dismissed.
                      ______________________________




      1
       The HONORABLE DONALD J. STOHR, United States District Judge for the
Eastern District of Missouri.
      2
        We note that Griffin’s sentencing argument also fails on the merits. Neither
Booker nor Shepard v. United States, 125 S. Ct. 1254 (2005), altered the rule that
both the fact and the nature of a prior conviction are issues for the sentencing court,
not the jury. United States v. Marcussen, 403 F.3d 982, 984 (8th Cir. 2005).
Moreover, Griffin admitted the prior felony drug conviction in his plea agreement;
the district court may rely on a defendant’s admissions in sentencing. Booker, 125
S. Ct. at 756.

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