U.S. v. Fogg, 04-2723.

• Decision Date: 20 May 2005
• Docket Number: No. 04-2723.,04-2723.
• Citation: 409 F.3d 1022
• Parties: UNITED STATES of America, Appellee, v. Ione E. FOGG, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

409 F.3d 1022

UNITED STATES of America, Appellee, v. Ione E. FOGG, Appellant.

No. 04-2723.

United States Court of Appeals, Eighth Circuit.

Submitted: February 14, 2005.

Filed: May 20, 2005.

COPYRIGHT MATERIAL OMITTED

Jana Miner, Pierre, SD, for appellant.

Mikal G. Hanson, Asst. U.S. Attorney, Pierre, SD, and Mark E. Salter, Asst. U.S. Attorney, Sioux Falls, SD, for appellee.

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and GRUENDER, Circuit Judges.

BOWMAN, Circuit Judge.

Appellant Ione E. Fogg pleaded guilty to two counts of misdemeanor larceny after writing and cashing checks that she had stolen in blank form from her mother-in-law. She appeals from the sentencing and restitution orders imposed by the District Court. After reviewing the record, we affirm Fogg's sentence, and we vacate the order of restitution and remand for reconsideration of the amount of restitution ordered.

I.

Fogg was indicted by a grand jury for felony larceny after cashing stolen checks at three locations on the Crow Creek Indian Reservation in South Dakota. A surveillance videotape showed Fogg writing and cashing checks at the Hunkpati Road Stop Texaco (Hunkpati) and the Lode Star Casino (Lode Star).¹ In addition, a witness was prepared to identify Fogg as having cashed stolen checks at Shelby's Convenience Store (Shelby's).

As mentioned previously, the stolen checks belonged to Fogg's mother-in-law, Ethel Miller, and they were drawn on Miller's checking account at Wells Fargo Bank (WFB). After Fogg was indicted, Miller died and Lode Star destroyed the videotapes from Lode Star and Hunkpati. As a result, the government allowed Fogg to plead guilty to a superseding information charging Fogg with two counts of misdemeanor larceny — one count for checks totaling $275.00 cashed at Shelby's and one count for checks totaling $189.00 cashed at Hunkpati. Fogg waived her appeal rights in her plea agreement, but she excepted from the appeal waiver the right to appeal any upward departures from the sentencing guidelines and to appeal the amount of restitution ordered.

At sentencing, the District Court reduced Fogg's base offense level by two levels for acceptance of responsibility. The District Court then imposed a two-level enhancement after finding that Miller had been a vulnerable victim. Determining that Fogg's criminal history score underrepresented her actual history of criminal activity, the District Court departed upward one criminal history category and two offense levels to reflect Fogg's true criminal history and likelihood of committing further offenses. These departures brought Fogg to an offense level of 8 and a criminal history category of VI, placing her within a sentencing range of 18-24 months. Because the statutory maximum sentence for each of the two misdemeanor larceny counts was twelve months, the District Court sentenced Fogg to twenty-four months, which reflected the maximum sentence for each of the two counts, running consecutively. In addition, the District Court entered an order requiring Fogg to pay $1,517.00 in total restitution to Shelby's, Miller's estate, and WFB. Fogg appeals, challenging her sentence and the amount of restitution ordered.

II.

We must first decide which of Fogg's claims were waived by her plea agreement. Generally speaking, a defendant may waive her appeal rights in a valid plea agreement. United States v. Andis, 333 F.3d 886, 889 (8th Cir.), cert. denied, 540 U.S. 997, 124 S.Ct. 501, 157 L.Ed.2d 398 (2003). In her plea agreement, Fogg waived her appeal rights, but excepted from the waiver the right to appeal an "upward departure" from the guidelines range and "any finding regarding the amount of restitution." Plea Agreement ¶ 11. The vulnerable victim enhancement Fogg received was pursuant to § 3A1.1(b) of the guidelines and was an "adjustment" rather than an "upward departure." See U.S. Sentencing Guidelines Manual ch. 3, pt. A (2003) (discussing "adjustments"); cf. id. ch. 5, pt. K (discussing "departures"); see also United States v. Walling, 982 F.2d 447, 449 (10th Cir.1992) ("The guidelines differentiate between departures and adjustments."). Thus, Fogg waived the right to appeal that enhancement. See United States v. Gaitan, 171 F.3d 222, 223-24 (5th Cir.1999) (distinguishing an "adjustment" from a "departure" for purposes of an appeal waiver).

Fogg also claims the enhancement of her sentence based on judge-determined facts violated her Sixth Amendment right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The Supreme Court's decision in United States v. Booker held that the reasoning of Blakely applied to the United States Sentencing Guidelines. See ___ U.S. ___, 125 S.Ct. 738, 746, 160 L.Ed.2d 621 (2005) (Stevens, J.). Unless expressly reserved, however, the right to appellate relief under Booker is among the rights waived by a valid appeal waiver, even if the parties did not anticipate the Blakely/Booker rulings. See United States v. Killgo, 397 F.3d 628, 629 n. 2 (8th Cir.2005). Further, plea agreements are contractual in nature and are to be interpreted according to the parties' intentions, looking to what the parties reasonably understood to be the terms. See United States v. Borer, 394 F.3d 569, 577 (8th Cir.2005); United States v. Alexander, 869 F.2d 91, 95 (2d Cir.1989); United States v. Rubbo, 396 F.3d 1330, 1334 (11th Cir.2005).

There is no indication that Fogg intended to except from her appeal waiver the right to appeal her sentence or the application of the guidelines on Sixth Amendment grounds. The fact that Fogg entered into her plea agreement before the Supreme Court's decision in Blakely underscores our interpretation of the agreement. The plea agreement reserved "the defendant's right to appeal an upward departure," Plea Agreement ¶ 11, and there is simply no evidence that the parties intended those words to have any meaning other than their usual and ordinary meaning prior to the Blakely/Booker decisions. See Rubbo, 396 F.3d at 1334. Thus, Fogg's plea agreement waived her right to assert a Blakely/Booker claim on appeal. Fogg's raising of Blakely at her sentencing hearing could not and did not vitiate the limitation on her right to appeal already agreed to as part of her plea agreement.² Consequently, we have no occasion to discuss the merits of Fogg's Blakely/Booker claims. By contrast, Fogg's waiver did reserve the right to appeal the upward departure based on the District Court's determination that Fogg's criminal history score failed to reflect the full extent of her criminality, as well as the right to appeal the amount of restitution ordered. We therefore turn to those claims.

A.

Fogg argues that the District Court erred by departing upward from her criminal history score and offense level under § 4A1.3 of the guidelines. We review de novo whether the sentence was imposed in violation of law or as the result of an incorrect application of the sentencing guidelines. See 18 U.S.C. § 3742(f)(1); UNITED STATES v. MASHEK, 2004 WL 2732476, No. 04-2650, slip op. at 6-8 (8th Cir. May 10, 2005) (citing United States v. Mathijssen, 406 F.3d 496 (8th Cir.2005)). We review for abuse of discretion the decision to depart upward from the guidelines, and we review the extent of the departure for reasonableness. Id. at ___ n. 5 (citing United States v. Iron Cloud, 312 F.3d 379, 382 (8th Cir.2002)); United States v. Sample, 213 F.3d 1029, 1032, 1034 (8th Cir.2000).

The District Court made the departure pursuant to § 4A1.3 after determining that Fogg's prior criminal activity was not adequately reflected by her criminal history score. See U.S. Sentencing Guidelines Manual § 4A1.3(a)(1) (2003). The District Court also determined that Fogg's numerous convictions — for petty theft, insufficient-funds checks, driving under the influence, and driving without a license — indicated a high likelihood that Fogg would commit other crimes. See id. We note that these bases for departure run parallel to two of the sentencing factors set forth in 18 U.S.C. § 3553(a). See United States v. Yahnke, 395 F.3d 823, 825 (8th Cir.2005) (finding that the bases for a departure under § 4A1.3(a) correspond with the sentencing factors listed in 18 U.S.C. §§ 3553(a)(1) and (a)(2)(C)). We therefore conclude these were permissible bases on which to make the upward departure.

After deciding a departure was warranted, the District Court exercised its discretion by departing upward to a criminal history category of VI and to an offense level of 8. This increased the applicable sentencing range of 9-15 months to a range of 18-24 months. The District Court then sentenced Fogg to the statutory maximum of twenty-four months for the two misdemeanor larceny convictions. Fogg could not have been surprised by this sentence, because the District Court had informed her before she pleaded guilty that she might receive a two-year sentence. Plea Hr'g Tr. at 12. Given Fogg's extensive history of criminal activity, the District Court did not abuse its discretion by departing upward under § 4A1.3, and the extent of the departure was reasonable.

Based on the foregoing discussion, we conclude that, insofar as Fogg's appeal rights were not waived as part of her plea agreement (we do not consider any claims that were waived), Fogg's sentence was not imposed in violation of law or as the result of an incorrect application of the sentencing guidelines. Likewise, we conclude that the resulting final sentence of twenty-four months is reasonable. Treating the guidelines as advisory, as Booker requires, we are satisfied that Fogg's sentence is supported by the District Court's guidelines calculations and by the sentencing factors listed in § 3553(a). We therefore affirm the sentence imposed by the District Court.

B.

Regarding Fogg's challenge to the amount of restitution ordered, a threshold question is whether Fogg preserved this issue for appellate review. In her written...