United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 8, 2006
Charles R. Fulbruge III
Clerk
No. 05-50029
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
Gordon Dunn,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:03-CR-10-1
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
In August 2003, pursuant to a plea agreement, Gordon Dunn
pleaded guilty in the Western District of Texas to conspiracy to
pass, utter, and possess fictitious obligations1 and to aiding and
abetting in bank fraud (“Texas conviction”).2 He received a
sentence of 60 months of imprisonment for conspiracy and 125 months
of imprisonment for bank fraud, followed by three and five years of
*
Pursuant to the 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1
18 U.S.C. §§ 371 & 514(a)(2) (carrying a five-year statutory maximum
sentence).
2
18 U.S.C. §§ 2 & 1344 (carrying a 30-year statutory maximum sentence).
supervised release, respectively.3 The district court also imposed
a $200 assessment and ordered Dunn to pay $387,406.87 in
restitution.
On appeal, Dunn attacks both his conviction and his sentence.
He contends that the district court erred in failing to dismiss the
conspiracy charge because the prosecution violated double jeopardy
and due process.4 He, then, asserts that the district court erred
in denying him credit for time served, in failing to articulate its
consideration of the sentencing factors enumerated in 18 U.S.C. §
3553(a), in failing to comport with United States v. Booker,5 and
in relying on unproved prior convictions to calculate his sentence.
Dunn first argues that we must dismiss his conspiracy
conviction because he pleaded guilty to the same crime in
Arkansas6—the Texas conviction, thus, repugnant to the principles
of double jeopardy and due process. We review de novo.7 In order
to establish double jeopardy, the defendant bears the initial
3
The district court sentenced Dunn to the upper limit recommended by the
Sentencing Guidelines.
4
Dunn pursues his claim of a Fifth Amendment violation despite pleading
guilty to the conspiracy charge in the Texas indictment after the magistrate
judge aborted a rearrangement hearing because Dunn had not fully explored the
double jeopardy issue with his counsel.
5
543 U.S. 220 (2005).
6
Dunn pleaded guilty to conspiracy to defraud through fictitious
instructions in the Western District of Arkansas; he served a 35-month term of
imprisonment and was released in May 2002.
7
United Stated v. Gonzales, 40 F.3d 735, 737 (5th Cir. 1994); United
States v. Delgado, 256 F.3d 264, 270 (5th Cir. 2001).
2
burden of demonstrating a prima facie claim.8 Once satisfied, the
burden shifts to the government to show by a preponderance of the
evidence that double jeopardy principles do not bar the later
criminal proceeding.9 As the critical issue concerning double
jeopardy in the instant matter, the government must prove that
separate agreements formed the basis of each conspiracy
conviction.10 In evaluating whether one or more agreements existed,
we consider, as to each charged conspiracy: (1) the time span, (2)
the persons acting as co-conspirators, (3) the statutory offenses
charged in the indictments, (4) the overt acts charged by the
government or any other description of the offense charged which
indicates the nature and scope of the illicit activity, and (5) the
places where the related events transpired.11
The Arkansas indictment charged that the prior conspiracy
spanned from May 18, 1999 through October 21, 1999, whereas the
Texas indictment alleged that the conspiracy began in June 1997 and
ended July 29, 2000. While the statutory offenses are identical,
8
Untied States v. Cruce, 21 F.3d 70, 74 (5th Cir. 1994).
9
Id.
10
United States v. Deshaw, 974 F.2d 667, 673 (5th Cir. 1992).
11
United States v. Marable, 578 F.2d 151, 154 (5th Cir. 1978), overruled
by United States v. Rodriguez, 612 F.2d 906, 919 (5th Cir. 1980), as stated in
United States v. Fisher, 106 F.3d 622, 633 n.11 (5th Cir. 1997); United States
v. Delgado, 256 F.3d 264, 272 n.5 (5th Cir. 2001) (stating “[a]lthough a panel
of this Court questioned the vitality of the evidence-based standard for
measuring double jeopardy claims in Fisher, the five-factor test for determining
whether separate conspiracies were involved remains a viable part of the analysis
with respect to double jeopardy claims involving conspiracies” (internal
citations omitted)).
3
the conspiracies, as alleged in the indictments, involve different
persons;12 Dunn remains the only commonality.13 The conspiracies do
not share common overt acts or other similar facts, as both the
banks and the checks used in each scheme differed, for example.
Lastly, the events revealed in the Arkansas indictment are
geographically limited to Arkansas, whereas, the Texas indictment
includes acts which occurred in Texas, Arkansas, Louisiana,
Missouri, and Florida—only one of the 32 overt acts charged in the
Texas indictment occurring in Arkansas.14 Tellingly, according to
the testimony of an investigating agent, Dunn stated that he
“hated” the two men named as co-conspirators in the Texas
indictment and admitted that he “went to Arkansas and started his
own separate scheme,” “to go on his own to work with other people.”
The government has established by a preponderance of the evidence
that the conspiracies involved separate agreements. Thus, the
prosecution for conspiracy in the Western District of Texas does
not violate the principles of double jeopardy. Although Dunn
12
But see United States v. Kalish, 690 F.2d 1144, 1151 (5th Cir. 1982)
(stating “[t]he commission of crimes at different times does not necessarily
prove that the crimes were carried out by different conspiracies” and “that the
conspiracy must take on additional members to accomplish one of its objects does
not in itself establish a different conspiracy”).
13
Dunn’s assertion that the “other persons known and unknown” recited in
the Texas indictment include the two co-conspirators named with Dunn in the
Arkansas indictment is speculative and unavailing.
14
Dunn makes much of the fact that one of the overt acts alleged in the
Texas indictment occurred in Arkansas on the same day as the final overt act
alleged in the Arkansas indictment. However, this fact does not preclude a
finding that Dunn was involved in two distinct criminal enterprises at the time.
4
argues the due process claim separately, this argument rests and
falls on the same logical framework; the two convictions involved
separate conspiracies and are factually distinct. Consequently,
Dunn’s due process argument that facts pertinent to the Arkansas
conviction were impermissibly relitigated also lacks merit.
Dunn’s plea agreement contained a waiver provision in which he
forfeited his statutory right to appeal the sentence, except in the
event of an upward departure from the Sentencing Guidelines. The
government, therefore, urges that we dismiss Dunn’s assertions of
error because he knowingly and voluntarily waived the right to
appeal his sentence and since the challenge does not fall within
the reserved exception.15
A defendant may waive his statutory right to appeal as a
condition of a valid plea agreement, if the waiver is both knowing
and voluntary and applies to the instant circumstances.16 Since the
district court did not upwardly depart from the Guidelines, Dunn’s
knowing and voluntary acceptance of the plea agreement, which
contained the explicit and unambiguous appeal-waiver
provision—reinforced by the magistrate judge’s admonitions during
15
In his reply brief, Dunn argues for the first time that the government
waived its right to rely on the appeal-waiver provision contained in the plea
agreement, for failure to raise the objection below. We decline to address the
merits of this argument. See United States v. Bonilla-Mungia, 422 F.3d 316, 319
(5th Cir. 2005).
16
United States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992); United
States v. Bond, 414 F.3d 542, 544-46 (5th Cir. 2005) (declining to reach an
assertion of error based on Booker, in light of a waiver-of-appeal provision in
the plea agreement); United States v. McKinney, 406 F.3d 744, 746 (5th Cir.
2005).
5
the arraignment hearings—bars his assertions of sentencing error.17
We AFFIRM the judgment of conviction and DISMISS the sentencing
objections.
AFFIRMED in part; DISMISSED in part.
17
Dunn also argues that he did not waive the right to appeal a sentence
above the statutory maximum, as defined in Blakely v. Washington. 124 S.Ct.
2531, 2537 (The “statutory maximum...is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.”). However, we have held that “the exception for a sentence imposed
above the statutory maximum shall be afforded its natural and ordinary meaning
of the upper limit of punishment that Congress has legislatively specified for
violations of a statute.” United States v. Cortez, 413 F.3d 502, 503 (5th Cir.
2005) (per curiam) (“The language in the appellate waiver must be afforded its
plain meaning in accord with the intent of the parties at the time the plea
agreement was executed. There is no indication that the parties intended that
the exception in the appellate waiver for ‘a sentence exceeding the statutory
maximum punishment’ would have a meaning other than its ordinary and natural
meaning” (internal citations and quotations omitted).). Dunn’s sentence does not
exceed the statutory maximum.
6