United States v. Ione E. Fogg ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2723
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of South Dakota.
*
Ione E. Fogg, *
*
Appellant. *
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Submitted: February 14, 2005
Filed: May 20, 2005
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Before MORRIS SHEPPARD ARNOLD, BOWMAN, and GRUENDER, Circuit
Judges.
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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
1
Apparently, Hunkpati was part of the Lode Star facility and the two shared a
common surveillance system.
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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 (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,
124 S. Ct. 2531 (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 125 S. Ct. 725, 746 (2005) (Stevens, J.). Unless expressly reserved, however, the
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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.
2
Fogg does not argue that the plea agreement is in any way invalid.
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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, No. 04-2650, slip op. at 6–8 (8th Cir. May 10, 2005) (citing
United States v. Mathijssen, No. 04-1995, slip op. at 3–4 (8th Cir. May 2, 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 6 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
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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
objections to the Presentence Investigation Report (PSR), Fogg objected to restitution
for any losses from the checks written to Lode Star because she had not admitted to
cashing any of those checks. Defendant's Written Objections (DWO) #1–4 (objecting
to PSR ¶¶ 8, 9, 11, and 12). She also objected that the PSR was "vague" as to the
number of Lode Star checks that were returned for insufficient funds once Miller's
account was depleted. Id. #5 (objecting to PSR ¶ 14). This objection implicitly
questioned the portion of the deficit in Miller's account to be attributed to the Lode
Star checks. See PSR ¶ 14; DWO # 5 (objecting to PSR ¶ 14); Addendum to PSR
(Addendum) at 2 (stating Probation Officer's Response to DWO #5).
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At sentencing, the District Court sustained Fogg's written objection to
restitution for checks cashed at Lode Star as "not part of the offense of conviction"
under 18 U.S.C. § 3663. Sentencing Tr. at 5, 19. The District Court then stated that
Fogg's vagueness objection as to Miller's account information was "immaterial."
Sentencing Tr. at 19. But this objection was not immaterial, because once the deficit
in Miller's account was reduced by the amount attributed to the Lode Star checks, the
restitution awarded to offset that reduced deficit would necessarily be reduced.
Accordingly, at sentencing Fogg made a new objection to "the count" of $742.00 in
restitution for Miller's estate, which was included for the first time in the Addendum.
Sentencing Tr. at 24; see Addendum at 2 (stating Probation Officer's Response to
DWO #5). Similarly, Fogg's objection to the restitution ordered for WFB was in
response to the Addendum, which for the first time stated that WFB had lost $500.00
as a result of honoring five checks cashed at Lode Star.3 Addendum at 2 (stating
Probation Officer's Response to DWO #5). In making these objections to restitution
for Miller's estate and WFB, Fogg's counsel twice referenced her initial Lode Star
objection. Sentencing Tr. at 24.
The government argues that because the Addendum was released on June 22,
2004, and because Fogg did not make her objections to the Addendum until the
sentencing hearing on June 28, 2004, Fogg's objections to the Addendum were
untimely under Rule 32 of the Federal Rules of Criminal Procedure. We disagree.
Rule 32 permits a court to "allow a party" to make a new objection at any time before
sentencing if "good cause" is shown. Fed. R. Crim. P. 32(i)(1)(D). The inclusion of
the losses to WFB and Miller's estate for the first time in the Addendum, as new
3
Counsel for Fogg stated she had not previously objected to restitution for
WFB in her written objections because WFB's losses had not been included in the
initial PSR. Sentencing Tr. at 24. In addition, Fogg's counsel clearly stated she did
not want to waive any objections to restitution that were not apparent prior to the
Addendum. Id. Notably, no mention of restitution for WFB was made in the initial
PSR.
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information, constituted good cause for making the objections, and the objections
were made before sentencing. After Fogg made these objections, the District Court
stated without explanation that "if that's an objection, it's overruled," Sentencing Tr.
at 25, which appears to have been a ruling on the merits. We therefore cannot say the
objections were untimely.
In summary, the District Court sustained Fogg's objection to restitution for any
losses from the Lode Star checks as not part of the charged offenses. Fogg also
objected to the impact of the Lode Star checks on the restitution ordered for WFB and
Miller's account. These latter objections implicitly and by reference objected to
restitution for losses not resulting from the charged offenses, and the District Court
rejected them on the merits. Therefore, we hold that Fogg preserved for appellate
review the issue regarding the amount of her restitution order.4
4
The point heading for the section of Fogg's brief that addresses the restitution
issue simply states that "THE DISTRICT COURT ERRED IN DETERMINING
FOGG'S RESTITUTION." Appellant's Br. at 17. In making her argument, Fogg
reiterates that "the superseding information did not charge that Fogg had stolen
money from [Lode Star]." Id. at 18. She argues that the District Court "clearly erred"
in awarding restitution to WFB and Miller's estate. Id. at 19 (emphasis added). Fogg
also cites United States v. Wise, 976 F.2d 393 (8th Cir. 1992), cert. denied, 507 U.S.
989 (1993), arguing that, given her sustained objection as to Lode Star, there was
insufficient factual support for the restitution ordered to WFB and Miller's estate. See
Appellant's Br. at 18–19. The government interprets this argument accordingly, and
rebuts in part by arguing that losses suffered by victims not named in the information,
i.e., losses from the Lode Star checks, could be compensated under 18 U.S.C. §§ 3663and 3663A. Appellee's Br. at 16–18. And although Fogg argues later in her brief that
the District Court "plainly erred" in awarding restitution based partially on the Lode
Star checks, Appellant's Br. at 20 (emphasis added), throughout her argument she
contends that she timely and properly made the relevant objections. Id. The record
supports our holding that she preserved her right to appellate review of her restitution
order for clear error, and Fogg's brief does not provide any persuasive reason to
conclude that she intended to concede or did concede to only plain-error review of
the amount of her restitution order.
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Accordingly, we review the amount of the District Court's restitution order for
clear error. United States v. Simon, 376 F.3d 806, 809 (2004). A sentencing court
may order a defendant to make restitution under the Mandatory Victims Recovery
Act. 18 U.S.C. § 3663(a)(1)(A) (2000); see United States v. Ramirez, 196 F.3d 895,
899 (8th Cir. 1999). Unless the charged offense has a scheme, conspiracy, or pattern
of criminal activity as an element, however, the restitution order may only cover
losses from the specific offense for which the defendant was indicted and convicted.
Ramirez, 196 F.3d at 899–900. The offense of larceny does not have a scheme,
conspiracy, or pattern of criminal activity as an element, see 18 U.S.C. § 661 (2000),
and therefore the District Court was limited to ordering restitution for the amount of
losses suffered by the victims of Fogg's larceny as charged in her superseding
information.
Fogg was charged with misdemeanor larceny for stolen checks cashed at
Shelby's and Hunkpati. The government dropped charges regarding checks cashed
at Lode Star from Fogg's superseding information. Again, the District Court denied
all restitution based on the Lode Star checks because those checks were not part of
the convicted offenses. The factual-basis statement accompanying Fogg's plea
agreement admitted a total loss of $464.00 from her offenses—$275.00 for checks
cashed at Shelby's and $189.00 for checks cashed at Hunkpati. The government
attested this factual-basis statement, thus signaling its agreement with Fogg's
admissions as to the total amount of stolen checks admitted by her plea.
The District Court ordered restitution in the amount of $1,517.00, which
corresponded to $275.00 for Shelby's, $500.00 for WFB, and $742.00 for Miller's
estate.5 In reviewing the record, there appears to be a problem with each of these
5
The District Court denied restitution for Hunkpati in reliance on the PSR,
which stated that Hunkpati had suffered no financial losses as a result of the stolen
checks. See Sentencing Tr. at 24; PSR ¶ 14 ("[The Hunkpati manager] stated the
checks cashed at [Hunkpati] were not returned as insufficient; therefore, [Miller]
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amounts. The $275.00 in restitution ordered for Shelby's was less than the $414.20
in total losses Shelby's suffered after penalty fees were assessed.6 PSR ¶ 15. In
addition, the $500.00 in restitution ordered for WFB was clearly compensation for
checks cashed at Lode Star rather than Shelby's or Hunkpati. See Letter from WFB
dated June 8, 2004 (regarding check nos. 2980–84). Finally, the $742.00 in
restitution ordered for Miller's estate was for penalties on twelve insufficient-funds
checks, but five of those twelve checks were cashed at Lode Star. See id. (regarding
check nos. 2985, 2987–90). To summarize, not only was Shelby's under-
compensated by the order, but it appears that none of the $500.00 ordered for WFB,
and only an unknown portion of the $742.00 ordered for the Miller estate, arose from
the charged offenses. The amount of the restitution order was therefore clear error.
Even though the amount of restitution at issue in this case is relatively small,
the calculation of that amount and the information supporting it are, at this point, both
confusing and conflicting. To wit, the PSR admits that "[i]t is unclear how much of
the [total losses] Mrs. Miller personally lost, before her funds were depleted, and the
amount of loss incurred by each business." PSR ¶ 12. Given the conflicting
information in the record and the resulting confusion at the sentencing hearing, we
must remand to ensure the restitution order covers only the losses from checks cashed
at Shelby's and Hunkpati.
incurred the losses with those checks, not the store."). As if to add to the confusion
in this case, however, the Addendum conflicts with this PSR statement by
maintaining that Hunkpati suffered a $189.00 loss. See Addendum at 2 (stating that
"the Hunkpati Road Stop incurred a loss of $189.00"); see also Letter from WFB
dated June 8, 2004 (stating that check nos. 2993, 3020, and 3050, totaling $189.00,
were returned to Hunkpati because of insufficient funds in Miller's account).
6
Although the District Court overruled Fogg's objection to the inclusion of
penalty fees in the restitution ordered for Shelby's, see Sentencing Tr. at 19–20, the
court appears to have omitted those penalty fees from the restitution order.
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III.
For the reasons discussed herein, the sentence imposed by the District Court
is affirmed, and the restitution order is vacated and the matter remanded with
instructions to reconsider the amount of restitution to be made by Fogg and to enter
a new order of restitution consistent with this opinion.
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