Submitted May 14, 2015.
Appeal from United States District Court for the Western District of Missouri - Springfield.
For United States of America, Plaintiff - Appellee: Randall D. Eggert, Assistant U.S. Attorney, U.S. Attorney's Office, Springfield, MO.
Scott R. Fonseca, Defendant - Appellant, Pro se, Leavenworth, KS.
For Scott R. Fonseca, Defendant - Appellant: Robert Delano Lewis, Springfield, MO.
Before LOKEN, BOWMAN, and KELLY, Circuit Judges.
LOKEN, Circuit Judge.
Scott Fonseca pleaded guilty to stealing thirty six firearms from a federally licensed firearms dealer in violation of 18 U.S.C. § § 922(u) and 924(i)(1). Prior to this conviction, Fonseca was convicted in the District of Kansas of knowing possession and disposal of eight of those firearms; he was serving that 70-month sentence at the time he was sentenced for this offense. The presentence investigation report determined an advisory guidelines range of 63-78 months in prison and recommended that the district court reduce the sentence for time served on the undischarged Kansas sentence if the Bureau of Prisons would not do so. See § 5G1.3(b)(1). Consistent with the plea agreement, the government urged a guidelines range sentence of 70 months, reduced by the Kansas time served (50 months). Fonseca urged a greater sentence credit resulting in a sentence of 13 months, to be served concurrent with the undischarged remainder of his Kansas sentence. Emphasizing Fonseca's lengthy criminal history and other § 3553(a) sentencing factors, the district court varied upward from the advisory range to 88 months, applied a 50-month credit for Kansas time served, and sentenced Fonseca to 38 months in prison, concurrent with the remainder of the Kansas sentence, plus a criminal restitution penalty of $18,666.62. Fonseca appeals the sentence. We affirm in part and remand to the district court for further restitution proceedings.
1. On appeal, Fonseca's counsel moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that the district court abused its discretion in varying upward and in not granting an additional sentence credit for 5.4 months of good time credit the Bureau of Prisons gave him while serving the Kansas sentence. Fonseca filed a pro se supplemental brief, arguing that the district court's sentence, viewed in relation to the Kansas sentence, was vindictive or a violation of the Double Jeopardy Clause; and that counsel's unavailability between the plea and sentencing hearings violated Fonseca's right to due process.
We conclude these contentions are without merit. In the written plea agreement, Fonseca waived his right to appeal his sentence. As is common, an enumerated exception allowed him to appeal an " illegal sentence," including a sentence that exceeds the statutory maximum, but the exception " does not include less serious sentencing errors, such as a misapplication of the Sentencing Guidelines, an abuse of discretion, or the imposition of an unreasonable sentence." The sentencing issues raised in counsel's Anders brief, and Fonseca's pro se argument that the district court should not have sentenced him more harshly than the District of Kansas judge, fall within the scope of this appeal waiver. We will enforce the waiver because the plea-hearing record convinces us
that Fonseca entered into the plea agreement and the appeal waiver knowingly and voluntarily, and that no miscarriage of justice would result from enforcing it. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (de novo review).
Fonseca's pro se double jeopardy argument, even if outside the appeal waiver, is without merit because the District of Kansas conviction and this conviction were not for the same offense. See Monge v. California,524 U.S. 721, 727-28, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998). To the extent Fonseca's pro se complaint about trial counsel's unavailability can be construed as a claim of ineffective assistance of counsel, it falls outside the appeal waiver, but we ...