United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3512

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United States of America, * 

* 

Appellee, * 

* Appeal from the United States

v. * District Court for the 

* District of South Dakota.

John M. Jenners, * 

*

Appellant. *

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Submitted: May 13, 2008

Filed: August 8, 2008

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Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.

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SMITH, Circuit Judge.

John M. Jenners pleaded guilty, pursuant to a plea agreement, to conspiracy to

commit bank fraud—in violation of 18 U.S.C. § 1344—counterfeiting, and aiding and

abetting counterfeiting—in violation of 18 U.S.C. §§ 474 and 2. After Jenners's initial

sentencing, the district court vacated his sentence on postconviction review, finding

that Jenners received ineffective assistance of counsel. After resentencing, Jenners

appealed to this court, and we remanded the case after concluding that the district

court improperly relied on disputed facts in Jenners's presentence investigation report
1

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

District of South Dakota.

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(PSR). Following remand, the district court1

 imposed a sentence of 96 months'

imprisonment. Jenners again appeals his sentence, arguing that the district court erred

in calculating his advisory sentence under the Guidelines and that the ultimate

sentence is unreasonable. We affirm.

I. Background

A. The Underlying Offense

Jenners and his co-conspirator defrauded banks by stealing bank account

information from various individuals, including the account holder's name, bank

account number, and the bank routing numbers. Then, Jenners would use this

information to create counterfeit checks and securities in false names. Using the

illegally obtained bank information, Jenners would also create false identification

documents, such as driver's licenses using various aliases, some of which displayed

Jenners's photograph. Jenners used the counterfeit checks and securities at banks and

businesses to obtain money, goods, and services.

Police and the Federal Bureau of Investigation (FBI) were notified of the

scheme after a store clerk reported a suspicious transaction involving Jenners. On

November 21, 2003, officers conducted a search of Jenners's residence, which he

shared with co-defendant Jessica Egerdahl. Police seized a scanner, a digital camera,

a counterfeit North Dakota driver's license seal, lamination plastic, a Versa Check

2003 computer program box, two CDs (one with images of $100 and $20 bills and the

other with templates of various state driver's licenses), numerous receipts from various

businesses that indicated purchases with counterfeit or fraudulent checks, and various

pieces of paper bearing account and routing information. The police did not find a

computer despite the other evidence indicating its probable use.
2

Jenners has an extensive criminal history, including more than a dozen

convictions. Among the prior offenses listed in his PSR are various forgery and theft

charges, fraudulent use of a credit card, mail theft, stolen money orders (although he

was not charged for this offense), unauthorized use of personal identifying

information, conspiracy to commit theft, possession of drug paraphernalia, and the

unlawful reproduction of a driver's license. Additionally, Jenners was on probation

and was also facing four unspecified charges in Oregon while he was on trial for this

offense. 

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B. Sentencing and Procedural Background

Jenners pleaded guilty to conspiracy to commit back fraud, counterfeiting, and

aiding and abetting. After accepting Jenners's plea, the district court sentenced Jenners

to a term of 108 months' imprisonment—this sentence was later vacated by the district

court on postconviction review because Jenners's counsel failed to file a direct appeal.

Upon resentencing, Jenners received the same sentence and appealed to this court. In

United States v. Jenners, 473 F.3d 894 (8th Cir. 2007), we vacated Jenners's sentence

and remanded the case for resentencing, concluding that the district court erred in

relying on disputed facts in Jenners's PSR.

At resentencing following remand, the district court imposed a sentence of 96

months' imprisonment. In determining Jenners's advisory sentence, the district court

applied enhancements for sophisticated means and possession of device-making

equipment. The court calculated Jenners's pre-departure sentencing range to be 51 to

63 months and departed upward after finding that Jenners's criminal history was

understated.2

 Alternatively, the court found that if no departure was warranted that a

variance would be appropriate.

Before imposing the 96-month sentence, the district court questioned Jenners

to verify that he was aware that his plea agreement surrendered the majority of his

appellate rights, except for his right to challenge an upward departure from the

Guidelines. Jenners acknowledged waiving most his appellate rights.
3

We decline to consider whether the Government waived its plea-agreementwaiver argument by failing to assert it in Jenners's initial appeal because Jenners did

not address this issue either in his brief or at oral argument. See United States v.

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II. Discussion

Jenners raises two arguments in this appeal. First, he challenges the application

of two enhancements under the Guidelines. Second, he argues that the district court's

decision to impose a sentence higher than his advisory range was unreasonable.

A. Calculation of Guidelines Sentence

First, Jenners challenges the district court's calculations of his Guidelines

sentence, arguing that the court erred in enhancing his sentence pursuant to U.S.S.G.

§ 2B1.1(b)(8)(C) and (9)(A).We decline to reach the merits of Jenners's arguments on

this point because we conclude that Jenners waived his right to challenge the

calculation of his advisory Guidelines range. In his plea agreement, Jenners waived

"any right to appeal any and all motions, defenses, . . . and objections . . . to [the

district court's] entry of judgment against him and imposition of sentence, including

sentencing appeals under 18 U.S.C. § 3742."

Absent a miscarriage of justice, an otherwise valid appeal waiver will foreclose

a defendant's argument that his Guidelines sentence was improperly calculated. United

States v. Mousseau, 517 F.3d 1044, 1047 (8th Cir. 2008). "The miscarriage of justice

exception to a waiver permits a defendant to challenge a sentence on the grounds that

'it is not authorized by the judgment of conviction or when it is greater or less than the

permissible statutory penalty for the crime[.]'" Id. (quoting United States v. Andis, 333

F.3d 886, 892 (8th Cir. 2003)). Jenners's plea agreement was knowingly and

voluntarily entered into, and he does not claim otherwise. Nor does he allege sufficient

facts to bring his case within the miscarriage of justice exception. Because Jenners

knowingly and voluntarily entered into the plea agreement, and his sentence would

not create a miscarriage of justice, we hold that Jenners's right to challenge the

calculation of his Guidelines sentence is waived.3
Walrath, 324 F.3d 966, 970 n.2 (8th Cir. 2003) (declining to address an argument that

was not raised before the district court or in the briefs or at oral argument); see also

Latorre v. United States, 193 F.3d 1035, 1037 n.1 (8th Cir. 1999) (stating that "[t]his

court, of course, does not normally address issues not raised in the district court nor

does it normally address issues not raised by a litigant on appeal"). 

4

United States v. Booker, 543 U.S. 220 (2005).

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II. Departure and Variance

Jenners also challenges the district court's decision to sentence Jenners to a term

in excess of his advisory Guidelines range. The district court justified this higher

sentence as either permissible under U.S.S.G. § 4A1.3 or as a variance under 18

U.S.C. § 3553(a). We agree with the district court and conclude that a variance under

§ 3553(a) was warranted. 

"[T]he [sentencing] court has a range of choice, and . . . its decision will not be

disturbed as long as it stays within that range and is not influenced by any mistake of

law." United States v. Rouillard, 474 F.3d 551, 556 (8th Cir. 2007) (quoting United

States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005)). "A court abuses its discretion

and imposes an unreasonable sentence when it 'fails to consider a relevant factor that

should have received significant weight; . . . gives significant weight to an improper

or irrelevant factor; or . . . considers only the appropriate factors but in weighing those

factors commits a clear error of judgment.'" Mousseau, 517 F.3d at 1048 (quoting

Rouillard, 474 F.3d at 556)). 

Post Booker,4

 a district court may vary from the otherwise applicable Guidelines

range based on several factors including:

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant; (2) the need for the sentence imposed

. . . (A) to reflect the seriousness of the offense, to promote respect for

the law, and to provide just punishment for the offense; (B) to afford
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adequate deterrence to criminal conduct; (C) to protect the public from

further crimes of the defendant; and (D) to provide the defendant with

needed educational or vocational training, medical care, or other

correctional treatment in the most effective manner; [and] (3) the kinds

of sentences available . . . .

18 U.S.C. § 3553(a); see also United States v. Mosqueda-Estevez, 485 F.3d 1009,

1012 (8th Cir. 2007) (laying out the three-step procedure that district courts should

follow when sentencing a defendant). 

We conclude that the district court did not abuse its discretion in sentencing

Jenners to 96 months' imprisonment. Here, when examining Jenners's criminal history,

the district court was permitted to consider that under the plea agreement, 24 of the

25 counts in the indictment were dismissed. See United States v. Yahnke, 395 F.3d

823, 826 (8th Cir. 2005) (recognizing that the district court is not limited to only

convictions when deciding whether to depart; it may consider uncharged misconduct

provided that there is sufficient proof of the misconduct). Considering these 24

uncharged offenses along with Jenners's lengthy history of criminal conduct, we

conclude that the district court's decision to vary from the Guidelines based upon an

understated criminal history was supported by several § 3553(a) factors, including the

need for the sentence to promote respect for the law, provide adequate deterrence to

criminal conduct, and to protect the public from further crimes of the defendant.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

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