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States v. Roubideaux

United States District Court, D. South Dakota, Central Division

June 27, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CLINT ROUBIDEAUX, Defendant.

          OPINION AND ORDER AFFIRMING MISDEMEANOR SENTENCE AND DISMISSING APPEAL

          ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.

         Appellant Clint Roubideaux (Roubideaux) appeals'from part of his criminal contempt probation sentence. Roubideaux contends that the community service requirement included as a special condition in the sentence is "plainly unreasonable." Doc. 1-1 at 4; Doc. 3 at 2. For the reasons articulated below, this Court affirms Roubideaux's sentence and dismisses the appeal.

         I. Background

         On February 8, 2017, this Court issued Roubideaux a subpoena requiring him to appear before a grand jury on February 14, 2017. Doc. 32 in File No. 3:17-cr-30013-MAM-l. Rosebud Sioux Tribe Law Enforcement Services Special Agent Mark Kettell served Roubideaux the subpoena on February 9. Id. Roubideaux failed to appear before the grand jury on February 14, and subsequently was charged with one count of criminal contempt. RL Pursuant to a written plea agreement, Roubideaux pled guilty to misdemeanor criminal contempt on January 3, 2018. Doc. 1-1. The plea agreement included the following paragraph:

M. WAIVER OF DEFENSES AND APPEAL RIGHTS: The Defendant hereby waives all defenses and his 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 his sentence for a determination of its substantive reasonableness should the Court impose an upward departure or an upward variance pursuant to 18 U.S.C. § 3553(a).

Doc. 30 at ¶ M. in File No. 3:17-cr-30013-MAM-l.

         Magistrate Judge Mark A. Moreno sentenced Roubideaux to one year of probation subject to both standard and special conditions on January 3, 2018. Doc. 1-1. Special Condition 1 of the sentence requires that Roubideaux "complete 100 hours of community service work, as directed by the probation office, to be completed by the end of the probationary period." Doc. 1-1 at 4. Roubideaux filed a timely appeal of the sentence on January 12, 2018. Doc. 1. His sole contention on appeal is that Special Condition 1 of the sentence is "plainly unreasonable." Doc. 3 at 2 (quoting 18 U.S.C. §3742(f)(2)).

         II. Enforceability of Waiver of Appeal

         A. Standard of Review

         On appeal, a federal district court reviews "an otherwise final sentence imposed by a United States magistrate judge... as though the appeal were to a court of appeals from a sentence imposed by a district court." 18 U.S.C. § 3742(h). When the appealed sentence involves a plea agreement containing a waiver of the right to appeal, the reviewing court must determine whether the defendant knowingly and voluntarily waived the right to appeal, as well as whether "the appeal falls within the scope of the waiver." United States v. Andis. 333 F.3d 886, 889-90 (8th Cir. 2003). "Whether a valid waiver of rights occurred is a question of law" reviewed de novo. United States v. Young. 223 F.3d 905, 909 (8th Cir. 2000). Even if the waiver is valid, the reviewing court "will not enforce [it] where to. do so would result in a miscarriage of justice." Andis, 333 F.3d at 890. Thus, this Court must determine whether Roubideaux knowingly and voluntarily entered his plea agreement and waived his right to appeal, whether the appeal falls within the scope of the waiver, and whether enforcing the waiver "would result in a miscarriage of justice." Id.

         B. Enforceability of Waiver

         This Court finds that Roubideaux's plea agreement and waiver are valid and enforceable. Roubideaux's "appellate brief does not address the appeal waiver contained in [his] plea agreement, so there is no contention that the waiver is unenforceable. To the contrary, a review of the record compels the conclusion that [his] appeal waiver" is enforceable. United States v. Cervantes, 420 F.3d 792, 794 (8th Cir. 2005). At the simultaneous plea and sentencing hearing, Roubideaux stated that he understood exactly which rights he waived by accepting the plea agreement. Doc. 43 at 13-14 in File No. 3:17-cr-30013-MAM-l. The record indicates Roubideaux was competent at the time of that hearing, id. at 3-5, and voluntarily and knowingly pleaded guilty under the terms of the plea agreement, Id. at 5-18. Indeed, during the change of plea colloquy, Judge Moreno expressly asked Roubideaux about Paragraph M, and Roubideaux acknowledged knowing that he was giving up "valuable defenses and appeal rights" thereunder. Id. at 13-14.

         C. Applicability of Waiver

         Roubideaux's appeal falls within the scope of the waiver, which bars Roubideaux from raising all but three possible kinds of appeals. Doc. 30 at ¶ M. in File No. 3:17-cr-30013-MAM-1. Those appeals not barred by the waiver are: 1) appeals challenging jurisdiction; 2) appeals challenging upward departures from the sentencing guidelines; and 3) appeals challenging the substantive reasonableness of the sentence's length under certain circumstances. Id. The appeal raises no jurisdictional deficiencies. Nor could Roubideaux appeal an upward departure from the sentencing guidelines, since Roubideaux pleaded guilty to a Class B misdemeanor to which the sentencing guidelines do not apply. 18 U.S.C. §§ 402, 3559(a)(7); U.S. Sentencing Guidelines Manual § IB 1.9 (U.S. Sentencing Comm'n 2018). The only other kind of appeal not already waived by Roubideaux is an appeal challenging the reasonableness of the sentence's length. Roubideaux's appeal of the reasonableness of one of the conditions of his probation sentence is distinct from a challenge to the ...


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