United States v. Robert C. Schulte, 436 F.3d 849 (8th Cir. 2006). · Go Syfert
United States v. Robert C. Schulte, 436 F.3d 849 (8th Cir. 2006). Cases Citing This Book View Copy Cite
20 citation events (20 in the last 25 years) across 3 distinct courts.
Strongest positive: United States v. Doug Hargrave (ca8, 2024-02-23) · Strongest negative: United States v. Hudson (ca10, 2007-04-17)
Treatment trajectory · 2006 → 2026 · click a year to view as-of
2006 2016 2026
Top citers, strongest first. 14 distinct citers. How cited ↗
cited Cited "but see" United States v. Hudson
10th Cir. · 2007 · signal: but see · confidence high
But see United States v. Schulte, 436 F.3d 849, 851 (8th Cir. 2006) (reaching contrary conclusion).
cited Cited "but see" United States v. Marvin Daniel Hudson
10th Cir. · 2007 · signal: but see · confidence high
But see United States v. Schulte, 436 F.3d 849, 851 (8th Cir.2006) (reaching contrary conclusion).
discussed Cited as authority (rule) United States v. Doug Hargrave
8th Cir. · 2024 · confidence medium
But “a challenge to a restitution order based on sufficiency of the evidence does not implicate the sort of ‘illegality’ that we said in Andis might justify voiding a voluntary agreement between the parties.” United States v. Schulte, 436 F.3d 849, 851 (8th Cir. 2006).
discussed Cited as authority (rule) United States v. Timothy Beston, Jr.
8th Cir. · 2022 · confidence medium
United States v. Schulte, 436 F.3d 849, 850-51 (8th Cir. 2006) (“If a defendant sentenced erroneously to a lengthy term of imprisonment that was within the statutory range but well beyond that authorized by the former mandatory guidelines could not establish a miscarriage of justice, then we think it would be anomalous to hold that a defendant challenging an order to pay a monetary sum could on that basis avoid an appeal waiver to which he knowingly and voluntarily agreed.”).
cited Cited as authority (rule) United States v. Mark Allen Sullivan
8th Cir. · 2017 · confidence medium
United States v. Lee, 502 F.3d 780, 780-81 (8th Cir. 2007); United States v. Schulte, 436 F.3d 849, 850 (8th Cir. 2006); United States v. Greger, 98 F.3d 1080, 1081-82 (8th Cir. 1996).
discussed Cited as authority (rule) United States v. Dawn Muir
8th Cir. · 2016 · confidence medium
United States v. Schulte, 436 F.3d 849, 850 (8th Cir. 2006) (holding that a waiver that includes all issues except jurisdiction does encompass restitution).
discussed Cited as authority (rule) United States v. Orlando Preston
8th Cir. · 2015 · confidence medium
The restitution issue falls within the scope of the waiver, see United States v. Lee, 502 F.3d 780, 780-81 (8th Cir.2007) (appeal waiver barred challenge to restitution order, as defendant waived right to challenge all non-jurisdictional issues and did not preserve challenge to restitution); the record demonstrates that Preston knowingly and intelligently entered into the plea agreement and appeal waiver, see Nguyen v. United States, 114 F.3d 699, 703 (8th Cir.1997) (defendant’s statements during plea hearing carry strong presumption of verity); and enforcing the waiver would not result in a…
discussed Cited as authority (rule) United States v. Johnson
11th Cir. · 2008 · confidence medium
Indeed, the court stated that "[t]he concept of an 'illegal sentence’ may not apply neatly to restitution orders, as they are not in the nature of a criminal penalty.” Id. at 851 (internal quotation marks omitted).
discussed Cited "see" United States v. Bradwin Wymore
8th Cir. · 2023 · signal: see · confidence high
See United States v. Schulte, 436 F.3d 849, 850 (8th Cir. 2006) (reviewing de novo the validity and applicability of appeal waiver to restitution); United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (enforcing appeal waiver if appeal falls within scope of waiver, defendant knowingly and voluntarily entered into plea agreement and waiver, and it would not result in miscarriage of justice).
cited Cited "see" United States v. Fernando Sanchez
8th Cir. · 2012 · signal: see · confidence high
See United States v. Schulte, 436 F.3d 849, 850 (8th Cir.2006).
cited Cited "see" United States v. Christopher Lee
8th Cir. · 2007 · signal: see · confidence high
See United States v. Schulte, 436 F.3d 849, 850 (8th Cir. 2006).
cited Cited "see" United States v. Lee
8th Cir. · 2007 · signal: see · confidence high
See United States v. Schulte, 436 F.3d 849, 850 (8th Cir.2006).
discussed Cited "see" United States v. Darren Alan Maurstad (2×)
8th Cir. · 2006 · signal: see · confidence high
See United States v. Schulte, 436 F.3d 849, 850 (8th Cir. 2006) (stating that -5- an illegal sentence could result in a miscarriage of justice and render an appeal waiver unenforceable but that "any sentence imposed within the statutory range is not subject to appeal" (brackets, citations, and quotations omitted)). 18 U.S.C. § 3584 (a) provides, in relevant part, that "if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively . . . ." See also U.S.S.G. § 5G1.3(c) ("In any other case invo…
discussed Cited "see" United States v. Darren Alan Maurstad, United States of America v. David George Foote (2×)
8th Cir. · 2006 · signal: see · confidence high
See United States v. Schulte, 436 F.3d 849, 850 (8th Cir.2006) (stating that an illegal sentence could result in a miscarriage of justice and render an appeal waiver unenforceable but that “any sentence imposed within the statutory range is not subject to appeal” (brackets, citations, and quotations omitted)). 18 U.S.C. § 3584 (a) provides, in relevant part, that “if a term of imprison *791 ment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively .... ” See also U.S.S.G. § 5G1.3(c) (“In any other …
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Robert C. SCHULTE, Appellant
05-2090.
Court of Appeals for the Eighth Circuit.
Feb 2, 2006.
436 F.3d 849
2006 U.S. App. LEXIS 2527
2006 WL 240505
Lawrence J. Fleming, argued, St. Louis, Missouri, for appellant., Steven A. Muchnick, AUSA, argued, St. Louis, Missouri (Matthew T. Schelp, AUSA, St. Louis, Missouri, on the brief), for appellee.
Melloy, Colloton, Benton.
Cited by 14 opinions  |  Published
COLLOTON, Circuit Judge.

Robert Schulte pled guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343, arising from a transaction for the purchase of real estate. At sentencing, the district court imposed a sentence of 19 months’ imprisonment, and ordered Schulte to pay restitution in the amount of $1,176,098.80, based on the loss caused by the specific transaction involved in the offense of conviction, together with harm caused by other real estate transactions that were part of the “scheme” that was an element of the wire fraud offense to which Schulte pled guilty. See 18 U.S.C. § 3663A(a)(2).

Schulte appeals only the district court’s restitution order, arguing that the government failed to prove that the losses asserted were directly and proximately caused by Schulte’s conduct as charged in the[*850] count to which he pled guilty. He contends that the restitution order thus violates the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, and the Sixth Amendment as construed in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The government moves to dismiss the appeal on the ground that Schulte waived his right to appeal, and argues alternatively that the restitution order was supported by sufficient evidence and consistent with the statute and the Constitution. See United States v. Carruth, 418 F.3d 900, 904 (8th Cir.2005).

We conclude that Schulte knowingly and voluntarily waived his right to appeal the restitution order, and that enforcement of the waiver would not result in a miscarriage of justice that could make the agreement of the parties unenforceable. See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir.2003) (en banc). The plea agreement signed by Schulte and the government provides in pertinent part that:

[B]oth the defendant and the government hereby waive all rights to appeal all non-jurisdictional issues including, but not limited to: any issues relating to pre-trial motions, hearings and discovery; any issues relating to the negotiation, taking or acceptance of the guilty plea or the factual basis for the plea; and, whatever sentence is imposed, any issues relating to the establishment of the Total Offense Level or Criminal History Category determined by the Court, except that the parties reserve the right to appeal from any Chapter 5 upward or downward departure from the Guidelines range if such departure is not agreed to in this document.

(R. at 60-61) (emphasis added).

This appeal waiver clearly extends to “all non-jurisdictional issues,” not merely to certain matters relating to “whatever sentence is imposed,” as Schulte asserts. An appeal of issues relating to the Total Offense Level or Criminal History Category are matters “includ[ed]” within the scope of the waiver, but to which the waiver is “not limited.” This meaning was reinforced during the change-of-plea hearing, at which time the district court confirmed Schulte’s understanding that he “reserve[d] the right to appeal based on claims of prosecutorial misconduct or ineffective assistance of counsel,” but “[ojther than those reserved rights, all of your other appellate rights are waived.” (Tr. at 35). A waiver limited to “whatever sentence is imposed” does not foreclose an appeal of a restitution order under our precedent, United States v. Sistrunk, 432 F.3d 917, 918 (8th Cir.2006), but a waiver, like this one, that includes all issues except jurisdiction does encompass restitution. United States v. Greger, 98 F.3d 1080, 1081-82 (8th Cir.1996); accord United States v. Glynn, 149 Fed.Appx. 322, 323 (5th Cir.2005) (per curiam) (unpublished). Accordingly, we conclude that Schulte knowingly and voluntarily waived his right to appeal the district court’s restitution order.

To the extent Greger does not already answer the question, we also hold that enforcement of the waiver would not result in a miscarriage of justice. See Andis, 333 F.3d at 891-92. While we did say in Andis that an “illegal sentence” could be a “miscarriage of justice,” we emphasized that the exception to general enforceability of appeal waivers was “extremely narrow” and'that “[a]ny sentence imposed within the statutory range is not subject to appeal.” Id. at 892. We established in this circuit that not every action that is contrary to law or in excess of the district court’s statutory authority constitutes an “illegal sentence” that avoids an appeal waiver. An improper application of the mandatory guidelines, for example,[*851] was not a sufficient basis to invalidate a knowing and voluntary appeal waiver, id., even though the district court in that scenario would have imposed an “illegal” sentence unauthorized by the Sentencing Reform Act. See 18 U.S.C. § 3553(b)(1) (2004).

The concept of an “illegal sentence” may not apply neatly to restitution orders, as “they are not in the nature of a criminal penalty,” Carruth, 418 F.3d at 904 (internal quotation omitted), but the focus of Andis on a statutory range nonetheless informs our consideration of what constitutes a “miscarriage of justice” for these purposes. Restitution orders “are not subject to any prescribed statutory maximum,” id., so a challenge to a restitution order based on sufficiency of the evidence does not implicate the sort of “illegality” that we said in Andis might justify voiding a voluntary agreement between the parties. See also United States v. Reynolds, 432 F.3d 821, 823-24 (8th Cir.2005) (“Enforcing the waiver [of a Booker claim] will not result in a miscarriage of justice as Reynolds’s sentence is within the statutory range authorized for the offense of conviction.”); but cf. United States v. Phillips, 174 F.3d 1074, 1076 (9th Cir.1999); United States v. Broughton-Jones, 71 F.3d 1143, 1147 (4th Cir.1995). If a defendant sentenced erroneously to a lengthy term of imprisonment that was within the statutory range but well beyond that authorized by the former mandatory guidelines could not establish a miscarriage of justice, then we think it would be anomalous to hold that a defendant challenging an order to pay a monetary sum could on that basis avoid an appeal waiver to which he knowingly and voluntarily agreed. If we refused to enforce this appeal waiver, moreover, we would render meaningless the holding in Greger, which enforced the waiver of an appeal asserting that restitution was imposed in' violation of statute. 98 F.3d at 1081.

For these reasons, the appeal is dismissed.