UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4623

JACQUELINE LYNN SOUDERS,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Martinsburg.

Robert Earl Maxwell, Senior District Judge.

(CR-95-7)

Submitted: January 28, 1997

Decided: April 2, 1997

Before MURNAGHAN, NIEMEYER, and MICHAEL,

Circuit Judges.

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Affirmed in part and dismissed in part by unpublished per curiam

opinion.

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COUNSEL

Kevin D. Mills, MILLS & SCALES, Martinsburg, West Virginia, for

Appellant. William D. Wilmoth, United States Attorney, Sherry L.

Muncy, Assistant United States Attorney, Elkins, West Virginia, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Jacqueline Lynn Souders pled guilty to aiding and abetting the robbery of a credit union, 18 U.S.C. §§ 2113, 2 (1994). She appeals

her

sentence of 24 months imprisonment, arguing that the district court

clearly erred by enhancing her sentence for physical restraint,

USSG

§ 2B3.1(b)(4)(B),* and refusing to grant her a downward adjustment

for minor role, USSG § 3B1.2, and erred in departing downward no

more than five levels. The government has moved to dismiss the

appeal because Souders waived her appeal rights in her plea agreement. We find that the waiver was ineffective and deny the motion

to dismiss. We affirm the sentence in part and dismiss in part.

Jacqueline Souders was the manager of the Berkeley County (West

Virginia) Public Schools Credit Union. She and an acquaintance,

Sydney Barnhart, discussed robbing the credit union for some time

before

the robbery, which occurred on September 13, 1995. That day was a

Wednesday, the day the credit union was normally closed to the public. Souders arrived for work before the two other employees. She

let

Barnhart in. He took $12,000 in cash, handcuffed Souders to a

chair,

and taped her mouth. When a second employee arrived, Barnhart

pushed her down, handcuffed her, and taped her mouth also.

Souders at first gave police a misleading description of the robber

which was inconsistent with the description given by the other

employee who saw him. However, she quickly decided to cooperate

and assisted in the arrest of Barnhart. The police recovered $7000

of

the money stolen.

First, we must decide whether Souders' waiver of her appeal rights

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*United States Sentencing Commission, Guidelines Manual (Nov.

1995).

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deprived us of jurisdiction over her appeal. A defendant may waive

his statutory right to appeal his sentence if the waiver is knowing

and

voluntary. United States v. Marin, 961 F.2d 493, 496 (4th Cir.

1992).

A waiver is not knowing and voluntary if the district court fails

to

question the defendant about it during the Fed. R. Crim. P. 11

hearing

unless the record otherwise discloses that the defendant was aware

of

its full significance. Id. Although Souders' Rule 11 hearing was

not

transcribed and is not included in the joint appendix, we conclude

from the materials before us that the waiver provision was not

brought to Souders' attention at the hearing. Souders signed the

plea

but did not initial each page or state in writing that she had read

and

understood it all. She is a high-school graduate with no prior

criminal

experience. We find nothing in the record which establishes that

she

understood the significance of the waiver. Consequently, we find

the

waiver ineffective and deny the government's motion to dismiss the

appeal on this ground.

Next, we find that the district court did not clearly err in

enhancing

Souders' sentence for the physical restraint used by Barnhart. The

enhancement should be given if a victim is physically restrained by

being tied, bound, or locked up. USSG § 2B3.1(b)(4)(B), comment.

(backg'd). The second employee to arrive at the credit union was

handcuffed and had tape placed on her mouth, which qualifies as

physical restraint.

Souders argues that she did not plan the restraint and did not know

that Barnhart intended to restrain either her or the other

employee.

However, specific offense characteristics are determined on the

basis

of relevant conduct. USSG § 1B1.3(a). In a jointly undertaken

criminal activity, the defendant is accountable for reasonably

foreseeable

acts of others which are in furtherance of the jointly undertaken

criminal activity. USSG § 1B1.3(a)(1)(B). Even if Souders was, in fact,

surprised by the restraint, Barnhart's action was reasonably

foreseeable. Therefore, Souders' sentence was properly enhanced.
Next, we find that Souders has failed to provide any cogent reason

why her role should be considered minor. A two-level reduction may

be given to a defendant who "is less culpable than most other

participants, but whose role could not be described as minimal." USSG

§ 3B1.2, comment. (n.3). The court's determination is "heavily

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dependent upon the facts of the particular case," USSG § 3B1.2,

comment. (backg'd), and is reviewed for clear error. United States v.

Reavis, 48 F.3d 763, 768 (4th Cir.), cert. denied, ___ U.S. ___, 63

U.S.L.W. 3890 (U.S. June 19, 1995) (No. 94-9316). The defendant

has the burden of convincing the court by a preponderance of the

evidence that she is entitled to the adjustment. Id. at 769. Souders

did not

provide any basis for a finding that she had a minor role either in

her

written objection to the presentence report or at sentencing.

Consequently, the district court did not clearly err in refusing the

adjustment.

Souders asked for a downward departure based on her own vulnerability and aberrant behavior, as well as for substantial

assistance. The

court departed five levels for substantial assistance. Souders

argues

that the evidence warranted a further departure. A defendant may

not

appeal the extent of a downward departure unless the departure

decision resulted in a sentence imposed in violation of law or resulted

from an incorrect application of the guidelines. United States v.

Hill, 70 F.3d 321, 324 (4th Cir. 1995). Review of the extent of the

substantial assistance departure is not warranted under Hill. Review of

the

court's refusal to depart on the other grounds urged is not

available.

United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.), cert. denied,

498

U.S. 819 (1990). Therefore, we dismiss this portion of the appeal.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court

and

argument would not aid the decisional process.

AFFIRMED IN PART, DISMISSED IN PART

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