United States District Court, D. South Dakota, Central Division
OPINION AND ORDER AFFIRMING MISDEMEANOR SENTENCE AND
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.
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.
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
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.
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
Enforceability of Waiver of Appeal
Standard of Review
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.
Enforceability of Waiver
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.
Applicability of Waiver
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 ...