The Honorable Lawrence L. Piersol, United States District 1

Judge for the District of South Dakota.

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No. 96-1032

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United States of America, *

*

Plaintiff/Appellee, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota

Gerald Greger, *

*

Defendant/Appellant. *

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Submitted: May 13, 1996

Filed: October 24, 1996

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Before RICHARD S. ARNOLD, Chief Judge, MAGILL, and MURPHY, Circuit Judges.

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MURPHY, Circuit Judge.

Gerald Greger, a resident of Wagner, South Dakota, was charged under

18 U.S.C. § 2243(a) with having a sexual relationship with a minor more

than four years younger than he. Greger pled guilty but reserved the right

to appeal the issue of federal jurisdiction. The district court sentenced 1

him to eighteen months imprisonment, and he appealed from the judgment.

We affirm.

Greger argues that the federal courts lack jurisdiction in this case

because the town of Wagner is not located within the Yankton Sioux Indian

Reservation and is not in Indian country. Although Wagner is within the

Yankton reservation boundaries
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established by treaty in 1858, 11 Stat. 743, Greger argues that the tribe

ceded jurisdiction over it and other parts of the reservation in an

agreement with the United States negotiated in 1892 and ratified by

Congress in 1894. 28 Stat. 286, 314. The United States responds that the

1858 treaty boundaries continue in force.

In Yankton Sioux Tribe v. Southern Missouri Waste Management

District, No. 95-2647, also filed today, we conclude for the reasons

detailed there that the Yankton reservation remains defined by the

boundaries established in 1858. Greger's jurisdictional argument is no

different from those presented in that case, and Wagner thus remains in

Indian Country as defined by 18 U.S.C. § 1151. There is federal

jurisdiction.

Greger also attempts to appeal the restitution ordered by the court

requiring him to pay $1,800 to the young woman with whom he was involved

and who became pregnant as a result. He argues that under 18 U.S.C.

§§ 3663 and 3664, any restitution award must be based on evidence of loss

to the victim, that no such evidence of loss was produced, that the victim

refused to seek restitution, and that restitution was unnecessary because

the victim has access to health care through the state and can seek child

support in tribal or state court. He also complains that he was denied due

process because he was not informed before sentencing that the court might

impose restitution or about any evidence of loss to the victim.

The United States argues that Greger waived his right to appeal all

issues other than jurisdiction when he pled guilty and that he did not

object to the restitution order at sentencing. Greger does not dispute

that he acknowledged at the change of plea hearing that he would not be

able to appeal from the sentence imposed by the court. So long as the

sentence is not in conflict with the negotiated agreement, a knowing and

voluntary waiver of the right to appeal from a sentence will be enforced.

United States v. Rutan, 956 F.2d 827, 829-30 (8th Cir. 1992).
 Greger has not shown he would prevail on these issues in 2

any event. He had notice restitution was likely; the Presentence

Investigation Report stated that restitution was mandatory under

18 U.S.C. § 2248 and that the court would have to determine the

amount of the loss because the victim refused to seek

restitution. Section 2248 is a mandatory restitution statute and

applicable to his case so his arguments regarding discretionary

restitution under 18 U.S.C. §§ 3663 and 3664 are not persuasive. 

Moreover, an award of $1,800, with monthly payments of $50,

appears reasonable under the circumstances. See id. §§

2248(b)(3), (b)(4)(B).

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Greger claims that the sentence was in conflict with the plea

agreement because that agreement was implicitly negotiated with the

understanding that the sentencing hearing would be conducted according to

law. He contends that the hearing did not comply with the procedural

safeguards in 18 U.S.C. § 3664 and that he should therefore be permitted

to appeal the restitution. 

The record shows that Greger knowingly and intelligently waived his

right to appeal all issues other than jurisdiction. The waiver was

included in the plea agreement and discussed at some length at the change

of plea hearing. At the sentencing hearing the court pronounced the

sentence including restitution without objection from Greger or his

attorney, and also reviewed his waiver of the right to appeal and asked him

if he understood. Greger responded affirmatively. Since Greger knowingly

and voluntarily waived his right to appeal any issue other than

jurisdiction, we need not consider the merits of his arguments about

restitution. Rutan, 956 F.2d at 829.2

Accordingly, the judgment of the district court is affirmed.

MAGILL, Circuit Judge, dissenting.

I respectfully dissent. For the reasons stated in my dissent in

Yankton Sioux Tribe v. South Dakota, No. 95-2647, I believe that the

Yankton Sioux Reservation was diminished by the Act of August 15, 1894, 28

Stat. 314. Because the reservation was diminished,
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there was no federal jurisdiction over this matter, and Greger's conviction

should be vacated. Accordingly, I would reverse the district court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.