United States v. Mark Allen Sullivan
2017 U.S. App. LEXIS 5876
| 8th Cir. | 2017Background
- Mark Sullivan pleaded guilty to one count of wire fraud for selling farm equipment online and failing to deliver as promised; he agreed to pay restitution and waived most appeal rights except an upward-departure/variance challenge.
- PSR calculated offense level 13, criminal history category II (three misdemeanor theft-related convictions), yielding an advisory range of 15–21 months; parties recommended time served (~17 months).
- District court sua sponte concluded Sullivan’s criminal history category substantially under‑represented recidivism risk, and departed upward to category VI, producing a 33–41 month range and imposing a 41‑month sentence.
- At sentencing the court relied on the PSR and FBI agent testimony about multiple similar transactions (some not resulting in convictions) and described the scheme as a “Ponzi scheme.”
- Sullivan appealed his sentence as procedurally and substantively unreasonable and challenged the Lundstrom restitution award; the government moved to enforce his plea‑agreement appeal waiver as to restitution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural reasonableness of upward departure under USSG §4A1.3 | Sullivan: departure unexplained and excessive; court failed to compare intermediate categories or assign points for uncharged conduct | Government: departure justified by under‑representation of criminal history and multiple similar frauds | Reversed and remanded: district court committed significant procedural error by failing to explain why category VI was appropriate and how intermediate categories were rejected |
| Substantive reasonableness of sentence | Sullivan: 41 months is substantively unreasonable given guideline range and parties’ recommendation | Government: higher sentence justified by pattern of fraud and recidivism risk | Not reached (court vacated sentence for procedural error) |
| Restitution amount to Lundstrom under MVRA | Sullivan: $56,464.44 exceeds proven loss | Government: appeal waived by plea agreement | Appeal dismissed as barred by knowing, voluntary appeal waiver; enforcement does not produce miscarriage of justice |
| Enforceability/scope of appeal waiver | Sullivan: waiver should not bar restitution challenge because upward‑departure carve‑out preserves broader review | Government: waiver covers all non‑jurisdictional issues, including restitution | Waiver enforced; carve‑out limited to appeals on upward departures/variance and sentence reasonableness only |
Key Cases Cited
- United States v. Barker, 556 F.3d 682 (8th Cir.) (framework for procedural and substantive sentence review)
- United States v. Scales, 735 F.3d 1048 (8th Cir.) (procedural error includes inadequate explanation for deviation)
- United States v. Feemster, 572 F.3d 455 (8th Cir.) (en banc) (requirement to explain departures)
- United States v. Mees, 640 F.3d 849 (8th Cir.) (application of §4A1.3 upward departure standard)
- United States v. Azure, 536 F.3d 922 (8th Cir.) (must compare intermediate criminal history categories when departing upward)
- United States v. Hacker, 450 F.3d 808 (8th Cir.) (consider nature and extent of criminal history for departure)
- United States v. Andis, 333 F.3d 886 (8th Cir.) (standards for enforcing appeal waivers and miscarriage of justice exception)
- United States v. Lee, 502 F.3d 780 (8th Cir.) (appeal waivers cover restitution challenges)
- United States v. Schulte, 436 F.3d 849 (8th Cir.) (restitution within scope of broad appeal waiver; sufficiency challenge doesn’t compel voiding waiver)
- United States v. Greger, 98 F.3d 1080 (8th Cir.) (broad appeal waivers include non‑jurisdictional sentencing issues)