United States v. Sharon McMillan , 483 F. App'x 308 ( 2012 )

United States Court of Appeals
For the Eighth Circuit
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No. 11-3203
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Sharon McMillan
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Rapid City
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Submitted: May 17, 2012
Filed: August 9, 2012
[Unpublished]
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Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Sharon McMillan appeals the 210-month sentence the district court1 imposed
after McMillan pled guilty, pursuant to a plea agreement, to second degree murder.
We enforce the appeal waiver found in the plea agreement and dismiss this appeal.
McMillan had a violent history with her first cousin Garland Morrison.
Morrison allegedly had raped McMillan, vandalized her home, and stolen personal
property and horses from her in past years. On May 1, 2010, Morrison and his
girlfriend Judy Bull Bear arrived at McMillan’s home on the Pine Ridge Indian
Reservation. Several people were at the home at the time, and almost all present,
including McMillan and Morrison, were intoxicated. An argument began between
McMillan and Morrison, and Morrison threatened to evict McMillan from her home,
claiming that the house trailer in which she was living was located on his property.
McMillan retrieved a baseball bat from the home and attacked Morrison. She struck
him several times with the bat. Morrison died from blunt force trauma to his head.
McMillan was charged with first degree murder.2 She later entered into a plea
agreement in which she agreed to plead guilty to a superceding information charging
her with second degree murder. The plea agreement included a waiver of appeal,
stating:
The Defendant hereby waives all defenses and her right to appeal any
non-jurisdictional issues. The parties agree that excluded from this
waiver is the Defendant’s right to appeal any decision by the Court to
depart upward pursuant to the sentencing guidelines as well as the
length of her sentence for a determination of its substantive
1
The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota.
2
The district court maintained jurisdiction over this case because McMillan is
an Indian and was charged with committing a federal crime within Indian country.
See 18 U.S.C. §§ 1111,1153, and 3231.
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reasonableness should the Court impose an upward departure or an
upward variance pursuant to 18 U.S.C. § 3553(a).
At sentencing, the court granted a two-level downward departure in
McMillan’s offense level based on Morrison’s misconduct. United States Sentencing
Commission, Guidelines Manual, §5K2.10. This resulted in an adjusted offense level
of 36 and a Guidelines range of 210 to 262 months. The court denied McMillan’s
request for a downward variance under 18 U.S.C. § 3553(a) and sentenced her to 210
months imprisonment.
McMillan appeals her sentence, arguing that the district court committed error
when it considered materials outside of the sentencing record in imposing the 210-
month sentence. The government has moved to dismiss the appeal, arguing that it
falls within the appeal waiver of McMillan’s plea agreement.
“We will enforce a defendant’s appeal waiver against all issues that fall within
the scope of the waiver if the defendant entered the plea agreement and appeal waiver
‘knowingly and voluntarily’ and enforcement of the waiver would not cause a
‘miscarriage of justice.’” United States v. Boroughf, 649 F.3d 887, 890 (8th Cir.
2011) (quoting United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010)). McMillan
recognizes her appeal does not fall under one of the exceptions to the appeal waiver
as provided for in the plea agreement. The basis of her appeal is procedural error, and
the district court did not impose an upward departure or variance. To avoid the
waiver, McMillan argues the district court made an erroneous statement about the
appeal waiver during her change-of-plea hearing. Because of this supposedly
erroneous statement, McMillan argues that she should be allowed to appeal her
sentence on procedural error grounds.
In United States v. Andis, we noted that “[w]e have yet to address the impact
of an erroneous statement by a district court at the time a plea agreement is accepted
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and decline to do so here.” 333 F.3d 886, 891 (8th Cir. 2003) (en banc). It remains
unnecessary for us to address this issue because the district court’s comments about
the appeal waiver, whether erroneous or not, did not convey or suggest to McMillan
that she would be able to appeal her sentence on the grounds she has presented to this
Court.
McMillan has waived her appeal rights under the plea agreement, and the basis
of her appeal does not meet one of the exceptions to the waiver. Accordingly, this
appeal is dismissed.
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