United States v. Lonny J. Street ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-3975
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota
Lonny J. Street, *
*
Appellant. *
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Submitted: May 16, 2001
Filed: July 27, 2001
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Before MORRIS SHEPPARD ARNOLD, BRIGHT, and BYE, Circuit Judges.
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BYE, Circuit Judge.
Lonny J. Street pleaded guilty to two counts of illegally taking bald and golden
eagles in violation of 16 U.S.C. § 668, and received a felony sentence of sixteen
months imprisonment. On appeal, he contends that § 668's enhanced felony provision
for a "second or subsequent conviction" does not apply to a second count charged in
a single indictment. He also claims that the district court1 erred by imposing a two-
level enhancement for obstruction of justice under U.S.S.G. § 3C1.1.
Section 668, a single violation of which is a misdemeanor, provides that "in the
case of a second or subsequent conviction . . . [a defendant] shall be fined not more
than $10,000 or imprisoned not more than two years, or both: Provided further, That
the commission of each taking . . . with respect to a bald or golden eagle shall
constitute a separate violation of this section." 16 U.S.C. § 668(a). Street contends
that the statute's enhanced penalty is triggered only when the commission of a second
offense follows a prior conviction, and therefore that the district court erred in imposing
a felony sentence upon Street's plea to the second count of a single indictment.
We review the district court's interpretation of the statute's enhanced penalty
provision de novo, see United States v. Alaniz, 235 F.3d 386, 386-87 (8th Cir. 2000),
and agree that Street's argument is foreclosed by Deal v. United States, 508 U.S. 129(1993). In Deal, the Supreme Court addressed whether multiple convictions in a single
proceeding were "second or subsequent conviction[s]" that triggered the enhanced
penalty provision of 18 U.S.C. § 924(c). The Supreme Court rejected the contention
that § 924(c)'s enhancement provision applied only when a second offense followed a
prior conviction. Deal, 508 U.S. at 134. There is no material distinction between the
relevant language of 16 U.S.C. § 668 and 18 U.S.C. § 924(c), so Deal is dispositive.
We are not persuaded by Street's attempt to distinguish Deal on the grounds that his
guilty pleas and convictions were entered simultaneously. See Deal, 508 U.S. at 133
n.1 ("[F]indings of guilt on several counts are necessarily arrived at successively in
time.").
1
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
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With respect to Street's second claim, the government contends that Street, in his
plea agreement, waived the right to appeal the obstruction-of-justice enhancement.
Street argues that he preserved the right to appeal the enhancement because it
represents an upward "departure" from the sentence contemplated by the parties in the
plea agreement. The relevant portion of the plea agreement, however, preserves only
the right to appeal a departure from the "guideline range established by the Court," not
the guideline range contemplated by the parties. The obstruction enhancement
constitutes a part of the guideline range established by the district court, not a departure
from it. Absent a claim that his plea was unknowing or involuntary, we conclude that
Street waived his right to appeal the obstruction enhancement. See, e.g., United States
v. Stuttley, 103 F.3d 684, 686 (8th Cir. 1996); United States v. His Law, 85 F.3d 379,
379 (8th Cir. 1996).
We affirm the judgment of conviction and sentence.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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