United States of America v. Stephen D. Bagley
No. 17-2382
United States Court of Appeals For the Eighth Circuit
November 6, 2018
LOKEN, Circuit Judge.
Appeal from United States District Court for the Western District of Missouri - Kansas City. Submitted: July 5, 2018.
LOKEN, Circuit Judge.
In July 2015, Stephen Bagley pleaded guilty to carjacking and firearm charges, pursuant to a written plea agreement that contained a waiver of the right to challenge his conviction and sentence. Bagley admitted that he stole a Nissan Altima at gun point with the car owner‘s dog (Mister) in the backseat, that the police later responded to a multi-vehicle car accident caused by the Altima, and that officers found Mister dead inside the car. The Altima owner filed a victim impact statement
Bagley‘s counsel has moved to withdraw and has submitted a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the court erred in assessing criminal history points for a sentence imposed contemporaneously in the District of Kansas, and by ordering restitution without supporting documentation. Counsel later filed a supplemental brief after the Kansas conviction was vacated, arguing that Bagley should be resentenced in light of the vacature. The government argues that the appeal waiver bars Bagley‘s challenge to his criminal history score, and that the restitution order for Mister‘s death was supported by the victim‘s statement that he raised the dog from a puppy, and “the district court‘s basic knowledge of expenses associated with dog ownership“; but concedes that the restitution order for chiropractic care was not supported by the record.
We conclude that the appeal waiver is valid and should be enforced as to Bagley‘s challenge to his criminal history score, because our review of the record demonstrates that Bagley entered into the plea agreement and the appeal waiver knowingly and voluntarily, see Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997); the argument falls within the scope of the waiver; and no miscarriage of justice would result from enforcing the waiver, see United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (de novo review); United States v. Andis, 333 F.3d 886, 890-92 (8th Cir. 2003) (en banc).
As to restitution for the death of Mister, we conclude that restitution is properly based on the provision of the MVRA addressing lost or destroyed property. See generally Andrews v. City of West Branch, 454 F.3d 914, 918 (8th Cir. 2006). The MVRA provides that, if the return of lost property is impossible, as in this case, the victim is entitled to payment of “the value of the property” on the date of destruction or sentencing, whichever is greater.
We have independently reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), and have found no other non-frivolous issues for appeal outside the scope of the waiver. Accordingly, we enforce the appeal waiver as to the criminal history challenge, and we vacate the restitution award.
COLLOTON, Circuit Judge, concurring in part and dissenting in part.
When appellant Bagley carjacked his victim‘s vehicle, Bagley ended up killing the victim‘s dog. The victim informed the court, via the probation office, that his losses included “a 4 year old Terrier that I raised from a puppy,” and claimed a loss amount of $14,999. The district court thought $15,000 was “a pretty wild overestimate” for the loss of the dog, but was “reluctant just to ignore it as speculative,” and decided to award $1,000. Citing decisions concerning restitution for victims of sexual abuse, in which this court has approved the use of estimates, reliance on “basic knowledge of medical expenses,” United States v. Emmert, 825 F.3d 906, 911 (8th Cir. 2016), and a “certain degree of conjecture,” United States v. Hoskins, 876 F.3d 942, 946 (8th Cir. 2017), the court thought it appropriate to make a “conservative” estimate of the victim‘s losses.
A victim‘s testimony alone, if credible, presumably would be sufficient to sustain an award in the amount claimed, for a victim who raised a dog is in a position to know the cost of replacing his lost property. While it is possible to build a new house to replace a four-year-old house without incurring the costs associated with four years of home maintenance, there is no way to bypass four years of growth for a living animal, so the district court did not clearly err by considering the costs of raising (and acquiring) a puppy. The district court did not credit the victim‘s assertion in its entirety, but understandably was reluctant to value the replacement cost of a four-year-old dog artificially at zero, and arrived at what it considered a conservative estimate of $1,000. In light of the latitude that we have allowed district courts in making restitution estimates, and the substantial discount applied to the victim‘s own estimate, I would uphold the award. I see nothing in the text of
I concur, as the government concedes, that the award for chiropractic care must be vacated. I therefore concur in part and dissent in part.