USA v. Hemler

Filing 920060307

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 7, 2006 Charles R. Fulbruge III Clerk No. 05-50232 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TAMMY HEMLER, also known as Tammy Rich, Defendant-Appellant. -------------------Appeal from the United States District Court for the Western District of Texas USDC No. 1:04-CR-175-ALL -------------------Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges. PER CURIAM:* Tammy Hemler appeals the restitution order imposed by the district court following her guilty-plea conviction for misprision of a felony, a violation of 18 U.S.C. § 4. The

district court sentenced Hemler to five years of probation, six months of home detention, $5,000,000 in restitution, and a $100 special assessment. Hemler contends that (1) 18 U.S.C. § 3663A does not authorize an order of restitution for offenses such as misprision

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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No. 05-50232 -2of a felony; (2) the order of restitution should be vacated pursuant to United States v. Booker, 543 U.S. 220 (2005); and (3) the district court abused its discretion in ordering restitution in the amount of $5,000,000. Hemler concedes that her plea agreement contained an appeal waiver; however, she asserts that the waiver does not bar her appeal. Hemler asserts that her waiver of appeal was not knowing

and voluntary because the scope of the restitution provision in her plea agreement allegedly is ambiguous. She also asserts that

the terms of the waiver provision do not encompass an order of restitution pursuant to § 3663A. Finally, she asserts that a

waiver of appeal does not bar an appeal of an illegal sentence. We review de novo whether a waiver provision bars an appeal. United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). determine whether the waiver was knowing and voluntary and whether the waiver applies to the circumstances at issue. United We

States v. Bond, 414 F.3d 542, 2005 WL 1459641 at *2 (5th Cir. June 21, 2005). The record reflects that Hemler knowingly and voluntarily waived her right to appeal her sentence, except for a sentence that was the result of an upward departure from the Sentencing Guidelines. Cir. 2005); See United States v. Cortez, 413 F.3d 502, 503 (5th United States v. McKinney, 406 F.3d 744, 746 (5th Because Hemler's

Cir. 2005); FED. R. CRIM. P. 11(b)(1)(N).

sentence did not constitute an upward departure from the

No. 05-50232 -3Guidelines, we DISMISS Hemler's appeal as barred by the waiver contained in the plea agreement. APPEAL DISMISSED.