United States v. Susan Krough , 333 F. App'x 156 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2772
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Susan K. Krough, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 15, 2009
Filed: May 29, 2009
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Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Pursuant to a written plea agreement, Susan K. Krough pleaded guilty to mail
fraud in violation of 18 U.S.C. § 1341. The district court1 sentenced Krough to three
years’ probation. As a special condition of Krough’s probation, the district court
ordered that Krough “not be employed in any capacity related to the mortgage
industry or in any vocation in which she would act in a fiduciary capacity during her
term of probation.” Krough appeals the district court’s imposition of that condition.
1
The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District
Court for the Western District of Missouri.
The Government argues that Krough’s plea agreement contained an appeal
waiver barring this appeal. That waiver, in relevant part, states:
The defendant expressly waives her right to appeal her sentence, directly
or collaterally, on any ground except a sentence imposed in excess of the
statutory maximum or an illegal sentence, that is, sentencing error more
serious than a misapplication of the Sentencing Guidelines, an abuse of
discretion, or the imposition of an unreasonable sentence.
“Issues concerning the interpretation and enforcement of a plea agreement are
issues of law, which we review de novo.” United States v. Amezcua, 276 F.3d 445,
447 (8th Cir. 2002) (quotation omitted). As we stated in United States v. Snelson, 555
F.3d 681 (8th Cir. 2009):
When we review an appeal waiver, we must make two determinations:
that the issue falls within the scope of the waiver and that both the plea
agreement and the waiver were entered into knowingly and voluntarily.
Even if both of these determinations are decided in the affirmative, we
will not enforce a plea agreement waiver if enforcement would cause a
miscarriage of justice. The government bears the burden of establishing
(1) that the appeal is clearly and unambiguously within the scope of the
waiver, (2) that the defendant entered into the waiver knowingly and
voluntarily, and (3) that dismissing the appeal based on the defendant’s
waiver would not result in a miscarriage of justice.
Snelson, 555 F.3d at 685 (internal quotations, citations, and alterations omitted).
Here, the Government meets its burden as to each of these requirements.
First, the Government correctly argues that Krough’s appeal is clearly and
unambiguously within the scope of the appeal waiver. By its terms, the waiver only
allows Krough to appeal “a sentence imposed in excess of the statutory maximum or
an illegal sentence.” The waiver defines an “illegal sentence” as a sentence involving
a “sentencing error more serious than a misapplication of the Sentencing Guidelines,
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an abuse of discretion, or the imposition of an unreasonable sentence.” (emphasis
added).
Krough’s sentence of three years’ probation undisputedly did not exceed the
statutory maximum sentence for her crime, which the parties agree is five years’
imprisonment. Krough’s appeal also does not allege a sentencing error more serious
than an abuse of discretion. Rather, it specifically asks us to hold that the district
court abused its discretion by imposing the occupational restriction at issue. See
United States v. Cervantes, 420 F.3d 792, 795 (8th Cir. 2005) (“Absent her appeal
waiver, we would review the imposition of the probation condition for abuse of
discretion.”); see 18 U.S.C. § 3563(b)(5) (stating that district courts “may” impose
occupational restrictions as conditions of probation “to the extent that such conditions
are reasonably related” to the statutory objectives of sentencing and “to the extent that
such conditions involve only such deprivations of liberty or property as are reasonably
necessary” to fulfill those statutory objectives). Such an abuse-of-discretion-based
claim clearly and unambiguously falls within the scope of the waiver.
Second, we agree with the Government’s contention that Krough knowingly
and voluntarily entered into the plea agreement and waived her right to this appeal.
Krough makes no argument that she entered into the plea agreement unknowingly or
involuntarily, and Krough’s signed plea agreement “acknowledges that she . . . entered
into [the] plea agreement freely and voluntarily after receiving the effective assistance,
advice and approval of counsel.” Additionally, the record shows that, pursuant to
Federal Rule of Criminal Procedure 11, Krough pleaded guilty in open court after a
magistrate judge reviewed the waiver with her and verified that Krough had discussed
her decision with counsel, and Krough made no objection to the magistrate judge’s
report and recommendation that the district court accept her guilty plea. We are thus
satisfied that Krough’s waiver was knowing and voluntary. See United States v.
Aronja-Inda, 422 F.3d 734, 738 (8th Cir. 2005) (“Based on Arjona-Inda’s signing of
the plea agreement, our review of the change-of-plea colloquy, and no contrary
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suggestion by Arjona-Inda, we conclude that Arjona-Inda’s waiver of appellate rights
was knowing and voluntary.”); Cervantes, 420 F.3d at 794 (holding that a defendant’s
appeal waiver was knowing and voluntary where the defendant’s plea agreement
expressly stated that her plea “was ‘voluntary’ and not coerced,” the defendant’s plea
agreement expressly stated that counsel advised her, and the district court confirmed
at the plea hearing that the defendant wished to waive her rights and had conferred
with counsel).
Finally, we agree with the Government that enforcing the appeal waiver in this
case will not result in a miscarriage of justice. While Krough argues that her sentence
is illegal, see United States v. Blue Coat, 340 F.3d 539, 542 (8th Cir. 2003) (“[T]he
miscarriage of justice exception allows this court to hear appeals of illegal sentences
. . . .”), she makes no claim that the district court based its sentence on a
constitutionally impermissible factor. Thus, we may not review her claim. See United
States v. Andis, 333 F.3d 886, 894 (2003) (en banc) (holding that an appeal waiver
bars this court’s review of supervised-release conditions under the miscarriage of
justice exception when defendants do not claim “that the supervised release conditions
constitute[] a miscarriage of justice because they were based on some constitutionally
impermissible factor”); see also Cervantes, 420 F.3d at 795 (applying Andis to a claim
involving a probation condition); Blue Coat, 340 F.3d at 542 (“Although the
miscarriage of justice exception allows this court to hear appeals of illegal sentences,
even where an otherwise valid waiver exists, the conditions of supervised release
imposed by a district court do not fall within this narrow exception, unless the
conditions were based on some other constitutionally impermissible factor . . . .”
(quotation omitted)).
For the foregoing reasons, we hold that Krough’s appeal waiver bars her appeal.
Accordingly, we affirm her sentence.
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