U.S. v. Egenberger

• Citation: 424 F.3d 803
• Decision Date: 23 September 2005
• Docket Number: No. 05-1689.,05-1689.
• Parties: UNITED STATES of America, Appellee, v. Dorothy Jean EGENBERGER, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 803

424 F.3d 803

UNITED STATES of America, Appellee, v. Dorothy Jean EGENBERGER, Appellant.

No. 05-1689.

United States Court of Appeals, Eighth Circuit.

Submitted: September 14, 2005.

Filed: September 23, 2005.

John P. Messina, Federal Public Defender, Des Moines, Iowa, for appellant.

William C. Purdy, Asst. U.S. Attorney, Des Moines, Iowa, for appellee.

Before MURPHY, HANSEN, and GRUENDER, Circuit Judges.

HANSEN, Circuit Judge.

Dorothy Jean Egenberger pleaded guilty to five criminal counts related to her fraudulent use of social security numbers. She entered her plea after the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), but prior to the Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Her sentencing hearing took place after the Court filed its Booker decision. Thus, at sentencing, the district court¹ appropriately applied the now advisory Sentencing Guidelines.

The presentence investigation report (PSR) recommended a sentencing range of 30 to 37 months of imprisonment. When making its Guidelines calculations, the district court sustained Egenberger's objection to the amount of loss calculation in the PSR and gave her credit for accepting responsibility. This resulted in a sentencing range of 18 to 24 months. The court then considered the factors listed in 18 U.S.C. § 3553(a) and concluded that the circumstances of this case-including the long-standing and repeated nature of Egenberger's conduct, her criminal history, the need to impress on her the seriousness of the matter, and the need for the sentence to afford adequate deterrence and to protect the public from further crimes-all warranted a sentence above the range recommended by the advisory Guidelines calculation. The court imposed a non-Guidelines sentence of 30 months of imprisonment. See United States v. Haack, 403 F.3d 997, 1003 (8th Cir.2005) ("Once the guidelines sentence is determined, the court shall then consider all other factors set forth in § 3553(a) to determine whether to impose the sentence under the guidelines or a non-guidelines sentence."), petition for cert. filed, (U.S. July 14, 2005) (U.S. No. 05-5652).

Egenberger preserved the right to appeal her sentence and asserts on appeal that the district court violated her Fifth Amendment due process rights by not applying the Sentencing Guidelines as mandatory, as allegedly guaranteed by her plea, and by imposing a sentence above the applicable Guidelines range without notice. We first look to the terms of Egenberger's plea agreement. "Plea agreements are contractual in nature and are interpreted according to general contract principles." United States v. Salter, 418 F.3d 860, 862 (8th Cir.2005). Accordingly, we apply de novo review to the interpretation and enforcement of a plea agreement. Id.

We conclude that the terms of Egenberger's plea agreement did not guarantee a mandatory application of the Sentencing Guidelines. In Salter, the defendant made a similar claim, asserting that due process entitled him to be sentenced under the mandatory sentencing scheme that existed at the time he entered into his plea. 418 F.3d 860, 862. We held as follows:

Here, the plea agreement did not guarantee Salter would be sentenced under a mandatory guidelines system. Rather, it provided Salter would be sentenced in accordance with the sentencing guidelines. It is clear the district court properly calculated the guideline sentencing range and correctly anticipated the guidelines would be advisory instead of mandatory. Thus, Salter received the bargained for benefit.

Id. The same reasoning applies in this case as nothing in the terms of the plea agreement guaranteed Egenberger a sentence within any particular Guidelines range. The plea agreement indicated only that the sentence would be "solely within the District Court's discretion, as limited and guided by the United States Sentencing Commission Guidelines which apply to this offense." (Plea Agreement at 2.) There is no claim here that the district court did not properly calculate the Guidelines sentencing range. The district court simply acknowledged that the Guidelines are advisory and exercised the discretion to "tailor the sentence in light of other statutory concerns as well," in accordance with Booker. 125 S.Ct. at 757. Thus, Egenberger received the bargained-for benefit of her plea agreement.

Egenberger points to a statement by the district court at her pre-Booker plea hearing that once it determines which Guidelines apply, the court has very little discretion to depart and is obligated to sentence within those Guidelines. She asserts that this statement guaranteed her a mandatory application of the Guidelines and that consequently, due process required notice of the court's intent to impose a sentence above the mandatory range identified. We respectfully disagree. The district court's statement at the pre-Booker plea hearing was nothing more than an accurate statement of how the Guidelines applied at the time of the plea. Because the Supreme Court excised the mandatory application provisions in order to render the Guidelines constitutional in Booker, 125 S.Ct. at 756-57, the district court was obligated to apply the Guidelines in an advisory manner at the time of sentencing. See Harper v. Va. Dep't of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) ("When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and...