1

The Honorable Michael J. Melloy, United States District Judge for the

Northern District of Iowa. Judge Melloy is now a United States Circuit Judge for the

Eighth Circuit. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-3097

___________

United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the Northern

* District of Iowa.

Mark Fuehrer, *

* [UNPUBLISHED]

Defendant-Appellant. *

___________

Submitted: May 15, 2002

Filed: August 29, 2002 

___________

Before MURPHY, HEANEY, and BRIGHT, Circuit Judges.

___________

PER CURIAM.

Mark Fuehrer pleaded guilty to one count of distributing crack cocaine, in

violation of 21 U.S.C. § 841(a)(1). The district court1

 sentenced Fuehrer to ninetytwo-months imprisonment to be followed by six years of supervised release. Fuehrer

raises three sentencing issues on appeal. Two issues address the district court's

treatment of Fuehrer's state child-endangerment conviction. The final issue concerns

Fuehrer's payment of restitution to the government. We affirm Fuehrer's sentence.
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I. BACKGROUND

On October 21 and 26, 1998, Mark Fuehrer and his roommate sold crack

cocaine to a confidential informant. On December 21, 1998, an individual

cooperating with law enforcement initiated a third controlled drug purchase from

Fuehrer. Based on these transactions, Fuehrer was named in a four count federal

indictment for distributing crack cocaine.

Three days before the third drug purchase, on December 18, Iowa police were

dispatched to Fuehrer's apartment. Police discovered that Fuehrer was not at home,

but found Fuehrer's five-year-old son at home with three men. The officers saw drug

paraphernalia in the apartment. Fuehrer's son told the officers he knew where his

father kept knives and needles; he subsequently showed them where Fuehrer kept

knives, drugs, and needles. The state charged Fuehrer with the possession of cocaine

with the intent to distribute and with child endangerment. The state court sentenced

Fuehrer to two years imprisonment on the child-endangerment offense. Fuehrer

served eleven months and was released. 

As to his federal drug charges, Fuehrer negotiated a written plea agreement

with the government. Fuehrer agreed to plead guilty to distributing 4.43 grams of

crack on October 21, 1998. At his plea hearing and again at sentencing, Fuehrer

argued that his state child-endangerment conviction was related to his current drug

distribution charge and that the conviction should only be used as relevant conduct

and should not be considered in calculating his criminal history category. Fuehrer

argued that his discharged state sentence should be considered as relevant history

because of the timing of the acts and the similarity of the underlying factual

circumstances. The district court rejected this argument and calculated Fuehrer's

already discharged state child-endangerment conviction as counting toward his

criminal history instead of considering it as relevant conduct. Within a sentencing

range of 92 to 115 months, the court sentenced Fuehrer to ninety-two months.
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Pursuant to Fuehrer's plea agreement, the court also ordered Fuehrer to pay restitution

of $1510.

II. DISCUSSION

On appeal, Fuehrer raises three sentencing issues. First, he contends that the

district court erred in using his state child-endangerment conviction in calculating his

criminal history category. Second, he asserts that the district court erred in failing to

depart downward by giving him credit for the time he served on his state childendangerment conviction. Finally, he argues that the district court erred in ordering

him to pay restitution to the government for the controlled buy money. 

A. Child-Endangerment Conviction

Fuehrer argues that the district court should have considered his childendangerment conviction as part of the relevant conduct for his underlying federal

drug charge. Fuehrer asserts that because the child-endangerment conviction

occurred between the three federal controlled drug purchases, the district court erred

in using it to calculate his criminal history score. If the district court would have

adopted Fuehrer's position, his criminal history category would have been reduced

from a Category V (92-115 months) to a Category IV (77-96 months).

"We consider a trial court's conclusions on the question of relevant conduct to

be factual in nature and review them only for clear error." United States v. Balano,

8 F.3d 629, 630 (8th Cir. 1993). 

Under United States Sentencing Guideline § 4A.1.1, criminal history points are

assessed for "each prior sentence" imposed on a defendant. The guidelines interpret

"prior sentence" as "any sentence previously imposed . . . for conduct not part of the
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instant offense." U.S.S.G. § 4A.1.2 (2000). The commentary to the guideline

explains:

A sentence imposed after the defendant's commencement of the instant

offense, but prior to sentencing on the instant offense, is a prior sentence

if it was for conduct other than conduct that was part of the instant

offense. Conduct that is part of the instant offense means conduct that

is relevant conduct to the instant offense under the provisions of § 1B1.3

(Relevant Conduct).

U.S.S.G. § 4A1.2, cmt. n.1. 

In determining whether conduct is part of the instant offense, courts consider

several factors, "including temporal and geographical proximity, common victims,

and a common criminal plan or intent." United States v. Blumberg, 961 F.2d 787,

792 (8th Cir. 1992) (holding a 1973 burglary was severable from conspiracy to

transport stolen property because the instant charge arose from a 1990 incident and

the 1973 burglary targeted a different victim and had different accomplices). Fuehrer

maintains that his child-endangerment conviction and federal drug distribution charge

have a common scheme or plan and related harms, namely drug activity. Fuehrer also

asserts that the child-endangerment conviction and federal drug distribution charge

are part of the same course of conduct, because the state child-endangerment incident

occurred between the federal controlled drug purchases. 

The district court concluded that the state and federal offenses targeted

different victims, namely, Fuehrer's son and society as a whole. The court also noted

that while the state and federal offenses had some common elements, the childendangerment offense was unrelated to the federal drug distribution offense. No clear

error exists in this determination.
2

Fuehrer's argument relies on United States v. O'Hagan, 139 F.3d 641 (8th Cir.

1998). O'Hagan is distinguishable from this case. There we addressed whether the

district court erred in crediting O'Hagan's prior discharged state sentence. Id. at 658.

Nothing in O'Hagan mandates that the court must credit a prior discharged sentence

in every case. Fuehrer also argues, based on O'Hagan and U.S.S.G. § 5G1.3

(discussing the imposition of a sentence subjected to an undischarged term of

imprisonment), that his discharged state conviction should be treated the same as an

undischarged sentence. Since, the district court recognized its authority to depart and

Fuehrer has not presented an allegation of an unconstitutional motive, we lack the

authority to address this argument. 

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Fuehrer also appeals the district court's refusal to depart downward to credit

him for time served on his discharged state child-endangerment conviction. We

review a court's decision to deny a departure only if the defendant can show that the

court had an unconstitutional motive in denying the request or if the court erroneously

believed that it lacked the authority to depart. See United States v. Peterson, 223 F.3d

756, 763 (8th Cir. 2000). Fuehrer has not alleged an unconstitutional motive.

Further, the district court recognized its authority to depart downward and concluded

Fuehrer's circumstances did not warrant a departure. Thus, we lack the authority to

review the district court's refusal to depart.2

B. Restitution Payment

Fuehrer argues that the district court erred in imposing the payment of

restitution because the government cannot be a victim in a controlled buy. Fuehrer's

plea agreement specifically states that he "agrees to pay $1,510 . . . to the Iowa

Division of Narcotics Enforcement for controlled buy money expended during the

investigation." (App. at 4.) 

We review the interpretation and enforcement of a plea agreement de novo.

United States v. Van Thournout, 100 F.3d 590, 594 (8th Cir. 1996). A plea

agreement is contractual in nature and is generally governed by ordinary contract
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principles. Id. Fuehrer urges us to construe the agreement against the government.

No question exists as to the agreement's meaning. The terms of Fuehrer's plea

agreement are not ambiguous. The agreement expressly states that Fuehrer would pay

restitution if the court orders.

Promises made in plea agreements are binding on both the defendant and the

government. See United States v. His Law, 85 F.3d 379, 379 (8th Cir. 1996). A

defendant who explicitly and voluntarily exposes himself to a specific sentence may

not challenge that punishment on appeal. See United States v. Nguyen, 46 F.3d 781,

783 (8th Cir. 1995). A defendant's agreement to pay restitution that a district court

orders is binding. See United States v. Lester, 200 F.3d 1179, 1179 (8th Cir. 2000).

Fuehrer contends that the district court erred in ordering him to pay restitution

because the government is not a "victim" in his crime. Fuehrer's argument misses the

point. The district court may order restitution to persons other than the victim of the

offense "if agreed to by the parties in a plea agreement . . . ." 18 U.S.C. §

3663(a)(1)(A). Thus, the district court did not err in ordering Fuehrer to pay

restitution to the government. 

III. CONCLUSION

Accordingly, we affirm. 

A true copy.

Attest:

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