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The Honorable Charles B. Kornmann, United States District Judge for the

District of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-2206

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota.

Nephi Sky Antelope, *

*

Appellant. *

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Submitted: November 10, 2008

Filed: December 8, 2008

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Before WOLLMAN, BEAM, and BENTON, Circuit Judges.

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WOLLMAN, Circuit Judge.

Nephi Sky Antelope pleaded guilty to one count of assault with a dangerous

weapon with intent to do bodily harm, a violation of 18 U.S.C. §§ 1153 and 113(a)(3).

Before his sentencing hearing, Antelope moved to withdraw his guilty plea,

contending that the federal prosecution subjects him to double jeopardy because he

previously pleaded no contest to a similar charge involving the same incident in tribal

court. The district court1

 denied the motion and sentenced Antelope to fifty-seven
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months’ imprisonment. Antelope appeals from the denial of the motion. We dismiss

the appeal.

I.

Antelope is a member of the Cheyenne River Sioux Tribe. On August 17, 2007,

Antelope assaulted Winfield Little Dog (a.k.a. Winfield Kills Crow) with a dangerous

weapon while on the Standing Rock Indian Reservation in South Dakota. He pleaded

no contest to complicity to aggravated assault in Standing Rock Sioux Tribal Court.

Pursuant to a plea agreement, Antelope was sentenced to ninety days’ imprisonment,

seventy-one of which were suspended, and was ordered to leave the Standing Rock

Indian Reservation for one year.

Antelope was indicted in federal district court for the same incident and pleaded

guilty to one count of assault with a dangerous weapon. He entered into a written plea

agreement, wherein he waived his defenses and right to appeal. On February 19,

2008, Antelope entered his guilty plea before the district court. At the hearing,

defense counsel confirmed that he had explained Antelope’s statutory and

constitutional rights to him and that he was satisfied that Antelope understood them.

Antelope confirmed that he had reviewed the written plea agreement with his counsel

and that he read it carefully himself before signing it. Antelope also confirmed that

he understood that he had given up his right to appeal, with the exception of appealing

from a sentence imposed above the guidelines range. The court advised Antelope that

with the above-noted exception: 

[Y]ou have given up all rights to appeal and so if you don’t like what I

do in your case as to the facts or the law or in general what your sentence

is, you have no place to go. You cannot go to the Court of Appeals in St.

Louis, Missouri, and you cannot go to the United States Supreme Court

and so you would be stuck with what I do in your case, right or wrong
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. . . so you are giving up very valuable rights. Do you understand all

that, sir?

Antelope responded, “Yes, sir.” Antelope stated that he was entering his plea

voluntarily and then pleaded guilty to the federal offense.

Thereafter, Antelope moved to withdraw his guilty plea. He argued that

because he had pleaded no contest to a similar charge related to the same incident in

tribal court, the Fifth Amendment’s double jeopardy clause barred the federal

prosecution and thus deprived the district court of jurisdiction. The district court

disagreed and denied Antelope’s motion, concluding that Antelope had not presented

an adequate reason for requesting withdrawal of the plea. 

II.

We review a waiver of appellate rights to “confirm that the appeal falls within

the scope of the waiver and that both the waiver and the plea agreement were entered

into knowingly and voluntarily.” United States v. Andis, 333 F.3d 886, 889-90 (8th

Cir. 2003) (en banc). If these conditions are met, we will enforce the waiver unless

doing so would result in a miscarriage of justice. Id. at 890. Antelope does not

challenge the validity or scope of the waiver, contending only that the prosecution of

the federal offense violates the Fifth Amendment’s double jeopardy clause because

of his earlier plea in tribal court. 

The Supreme Court’s opinion in United States v. Lara, 541 U.S. 193 (2004),

forecloses Antelope’s argument. In Lara, a member of the Turtle Mountain Band of

Chippewa Indians pleaded guilty to the crime of violence to a policeman in Spirit

Lake Tribal Court. Id. at 196. After his tribal court conviction, the federal

government charged the defendant with a federal offense based on the same incident.

Id. at 197. The Supreme Court held that the double jeopardy clause did not prohibit
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the government from prosecuting the defendant for a discrete federal offense even

though he had pleaded guilty to a similar tribal offense. Id. at 210. Because a tribe

exercises its inherent tribal authority when it prosecutes nonmember Indians, the tribe

acts in its capacity as a sovereign. Id. The tribal prosecution did not amount to an

exercise of federal power, and thus the double jeopardy clause did not apply. Id.

Enforcing the waiver provision in the plea agreement will not result in a

miscarriage of justice because Supreme Court precedent bars Antelope’s only

argument. Antelope thus cannot appeal from the district court’s denial of his motion

to withdraw his plea agreement. 

Conclusion

The appeal is dismissed.

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