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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 court1 sentenced
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
1
The Honorable Lawrence L. Piersol, United States District
Judge for the District of South Dakota.
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).
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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,
2
Greger has not shown he would prevail on these issues in
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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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.
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United States v. Gerald Greger
Combined Opinion