## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-3023

___________ United States of America, * * Appellee, * * v. * * Darren Alan Maurstad, * * Appellant. * ___________ Appeals from the United States District Court for the No. 05-3024 District of South Dakota.

___________ United States of America, * * Appellee, * * v. * * David George Foote, * * Appellant. *

___________ Submitted: March 13, 2006 Filed: July 19, 2006

___________ Before ARNOLD, JOHN R. GIBSON, and SMITH, Circuit Judges.

___________1 The Honorable Charles B. Kornmann, Un ited States District Judge for the District of South Dakota.
-2- SMITH, Circuit Judge. Darren Alan Maurstad and David George Foote pleaded guilty to conspiracy to possess methamphetamine with intent to distribute. Maurstad challenges the reasonableness of his sentence, and Foote alleges miscellaneous sentencing errors. We hold that Maurstad's sentence is reasonable, and we dismiss Foote's appeal due to the valid waiver of appeal cont ained in his plea agreement.

I. Background While traveling through South Dakota, Maurstad met Jamie Turkey in a bar. The two became romantically involved. Even tually, Maurstad moved in with Jamie and her family in Winner, S outh Dakota. After the couple secured their own residence, Chad Turkey, Jamie's brother, introdu ced Maurstad to a man named Southy Thepmontry. Thepmontry distributed methamphetamine in Winner and enlisted Maurstad to assist in the distribution. Maurstad permitted Foote and Jamie Turkey to distribute methamphetamine from his home.

At sentencing, the district court 1 attributed 10.5 grams of methamphetamine to Maurstad but not the additional quantities distributed by the other members of the conspiracy. The district court calculated an offense level of 15 and a criminal history category of VI. The resulting advisory Gu idelines range was 41 to 51 months' imprisonment.

The district court then concluded that the Guidelines substantially underrepresented Maurstad's lengthy criminal history. Maurstad received 28 criminal history points, 15 more than what is require d to reach a category VI criminal history, the highest possible category. Thus, the district court considered Maurstad's category VI criminal history "totally inadequate." The district court notedthat Maurstad "has-3- been committing crimes since age 12 and has basically never stopped committing crimes," remarking that Maurstad "has spen t the majority of his life in juvenile and adult correctional institutions." The district court also pointed out that Maurstad did not receive criminal history points for several of his prior offenses.

Applying the sentencing factors contai ned in 18 U.S.C. § 3553(a), the district court found that a sentence above the adviso ry Guidelines range was warranted based primarily on Maurstad's lengthy and underrepresented criminal record. Specifically, the court noted the need for Maurstad's sentence to deter su ch criminal conduct, protect the public from him, and rehabilitatehim. (Sent. Tr. 19). The court decided that a 120-month sentence was reasonable und er the circumstances. Maurstad appeals, arguing that his sentence is unreasonable.

Foote appeals his sentence, arguing that it exceeds the statutory maximum and violates the Sixth and Eighth Amendments to the United States Constitution. The advisory Guidelines range was 210 to 262 months' imprisonment, based on a total offense level of 32 and a criminal history of category VI, given his status as a career offender. However, the statutory maximu m of 240 months' imprisonment capped the Guidelines range. The district court sentenced Foote to 240 months' imprisonment, ordering that his federal sentence begin to run after Foote served 18 months of a 10- year state sentence on a burglary convicti on. The United States posits that Foote waived the right to appeal his sentence. Inparagraph 15 of his plea agreement, Foote waived his right to appeal his sent ence under 18 U.S.C. § 3742, excluding the right to appeal the reasonableness of his sent ence if it exceeded the advisory Guidelines range. Foote counters that his sentence satis fies the narrow exception to the general rule enforcing appeal waivers set forth in United States v. Andis , 333 F.3d 886, 892 (8th Cir. 2003).-4- II. Discussion A . Maurstad's Sentence In sentencing a defendant, the district court should first calculate the advisory Guidelines range. United States v. Sitting Bear , 436 F.3d 929, 934 (8th Cir. 2006). Second, the district court should considerwhether any departure is warranted under the Guidelines. Id . Third, the district court should consider the sentencing factors of 18 U.S.C. § 3553(a) and impose a reasonable sentence. Id . at 934–35. We review the reasonableness of a sentence fo r an abuse of discretion. United States v. Sebastian , 436 F.3d 913, 915 (8th Cir. 2006). "[A]n abus e of discretion may occur when (1) a court fails to consider a re levant factor that should have received significant weight; (2) a court gives significant weight to an improper or irrelevant factor; or (3) a court considers only the appropriate factors but in weighing those factors commits a 'clear error of judgment.'" United States v. Haack , 403 F.3d 997, 1004 (8th Cir. 2005) (citing Kern v. TXO Prod. Corp. , 738 F.2d 968, 970 (8th Cir. 1984)). Where a defendant's criminal history is substantially underrepres ented by the Guidelines , an extraordinary upward departure or variance may be reas onable, provided that it is justified by extraordinary circumstances. United States v. Lyons , ___ F.3d ___, 2006 WL 1667635, at *2 (8th Cir. 2006); United States v. Kendall , 446 F.3d 782, 785 (8th Cir. 2006); United States v. Shannon , 414 F.3d 921, 923–24 (8th Cir. 2005).

Maurstad's sentence withstands our reas onableness review. He has an extensive criminal history, spending most of his life in the penal system, either incarcerated or on parole. The district court characterized Maurstad's involvement with the penal system as "serving life imprisonment on the installment plan." His criminal behavior began at age 12 with several misdemeanortheft convictions and has escalated to include now (at age 34) several felony burgl ary convictions, an illegal weapon charge, domestic assault, forgery, and other thef t-related convictions. Maurstad has often escaped or absconded from jail and work re lease, including a r ecent escape from state custody in 2004. Several times his parole has been revoked. Maurstad amassed 28 criminal history points, well beyond the 13 poi nts required to classify him a category-5- VI offender, the highest listed Guidelines cl assification. In addition, several of his convictions resulted in no criminal history points under the Guidelines. Given Maurstad's longstanding criminal behavior a nd his resistance to rehabilitation, his case is analogous to our holdings in Lyons , 2006 WL 1667635, at *2, and Shannon , 414 F.3d at 923–24. Therefore, we affirm his sentence as reasonable.

We note that the record is unclear whether the district court intended to impose an upward departure under the Guidelines or an upward variance outside of the Guidelines. In concluding the sentencing colloquy, the district court stated, "I'm going to impose what used to be called upward departure. I'm going to sentence [Maurstad] to 120 months of custody[.]" (Sent. Tr. 20). Ho wever, the court did not explicitly refer to the Guidelines departure provisions. While we reiterate that departures under the Guidelines should still be considered after Booker , see Sitting Bear , 436 F.3d at 934, we uphold Maurstad's sentence because the same considerations that render the upward variance reasonable could have also justified an upward departure under the Guidelines. See Lyons , 2006 WL 1667635, at *2. The failureto explicitly consider a departure under the Guide lines represents clear but harmless error given the extraordinary circumstances present here that justify the extraordinary variance. See Sitting Bear , 436 F.3d at 935 (citing United States v. Long Soldier , 431 F.3d 1120, 1122 (8th Cir. 2005)).

B. Foote's Sentence Foote challenges his sentence in several respects, including an argument that his sentence exceeds the statutory maximum. We hold that Foote waived his right to appeal his sentence in his plea agreement with the Unite d States. However, because a sentence that violates the statutory maximum is subject to the "miscarriage of justice" exception that precludes the enfor cement of otherwise valid appeal waivers announced in United States v. Andis , 333 F.3d 886, 891 (8th Ci r. 2003) (en banc), we briefly address why the sentence imposedhere does not exceed the statutory maximum. See United States v. Schulte , 436 F.3d 849, 850 (8th Cir. 2006) (stating that-6- an illegal sentence could result in a miscarri age of justice and render an appeal waiver unenforceable but that "any sentence imposed within the statutory range is not subject to appeal" (brackets, citations, and quotations omitted)).

18 U.S.C. § 3584(a) provides, in relevant part, that "if a term of imprisonment is imposed on a defendant who is alrea dy subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively . . . ." See also U.S.S.G. § 5G1.3(c) ("In any other cas e involving an undischarged term of imprisonment, the sentence for the inst ant offense may be imposed to run concurrently, partially conc urrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.").

Foote alleges that his sentence exceed s the statutory maximum because the district court elected to run the federal se ntence concurrent withall but 18 months of his state sentence for burglary. This argument fails. Foote was subject to an undischarged term of imprisonment when he was sentenced by the district court. Consequently, the district court could order the sentences to run consecutively, concurrently, or partially conc urrently. The fact that the di strict court elected to run the sentences concurrent in part does not ch ange the fact that Foote was sentenced to no more than 240 months' imprisonment for the instant offense.

Because Foote's sentence is within th e statutory range, the appeal waiver contained in his plea ag reement is enforceable. See Schulte , 436 F.3d at 850. Consequently, we dismiss his appeal.

III. Conclusion We hold that Maurstad's sentence is r easonable because the Guidelines failed to adequately account for his extraordinary criminal history, supporting the extraordinary upward variance imposed by th e district court. We further hold that Foote waived his right to appeal his sentence, and we dismiss his appeal.

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