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United States v. Kieffer

United States Court of Appeals, Seventh Circuit

July 27, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
CARL F. KIEFFER, Defendant-Appellant

Submitted February 10, 2015.

Appeal from the United States District Court for the Southern District of Illinois. Nos. 13-CR-30251-MJR, 14-CR-30051-MJR & 14-CR-30052-MJR -- Michael J. Reagan, Chief Judge.

For United States of America (14-2650, 14-2652, 14-2653), Plaintiff - Appellee: Angela Scott, Attorney, Office of The United States Attorney, Criminal Division, Fairview Heights, IL.

For Carl Frederick Kieffer (14-2650, 14-2652, 14-2653), Defendant - Appellant: Thomas C. Gabel, Attorney, Office of The Federal Public Defender, East St. Louis, IL.

Before EASTERBROOK, RIPPLE, and WILLIAMS, Circuit Judges.

OPINION

Page 851

Per Curiam.

Carl Kieffer robbed the Bank of O'Fallon in O'Fallon, Illinois, on October 15, 2013. He fled by car and led police officers on a high-speed chase. The officers lost sight of him temporarily but later found him hiding in a cornfield. Mr. Kieffer confessed to robbing the bank, and the police retrieved the $3,330 he had stolen. Mr. Kieffer also confessed that he had robbed six other banks (five outside Illinois) during the previous two months. At

Page 852

the time of his arrest, he faced charges for only two of those robberies, however, one in Lusk, Wyoming, and another in Charlotte, Michigan. Mr. Kieffer agreed to plead guilty to those robberies, and the cases were transferred to the Southern District of Illinois and consolidated with Mr. Kieffer's prosecution for the robbery in O'Fallon. See Fed. R. Crim. P. 20. Mr. Kieffer pleaded guilty to all three robberies, see 18 U.S.C. § 2113(a), and he signed a stipulation acknowledging his confession to committing the four uncharged robberies.

At sentencing the district court calculated a total offense level of 28 and criminal history category of V, yielding a guidelines imprisonment range of 130 to 162 months. The total offense level was reached by separately calculating the offense levels for all seven bank robberies, see U.S.S.G. § 1B1.2(c), and then applying a multiple-count adjustment, see id. § 3D1.4. Mr. Kieffer received concurrent twenty-year sentences--the statutory maximum on each count, see 18 U.S.C. § 2113(a). The court also ordered Mr. Kieffer to pay $10,615 in restitution to the banks he robbed in Wyoming and Michigan, plus an additional $21,230 to the banks in the four uncharged robberies.

On appeal, Mr. Kieffer challenges a portion of his restitution order as well as the calculation of his guidelines imprisonment range. He does not challenge separately the reasonableness of his sentence, however, assuming the guidelines range is properly calculated.

We begin by making two threshold points. First, as part of his plea agreement, Mr. Kieffer agreed to relinquish his appeal rights except that he could challenge " the reasonableness of the sentence" if " the sentence imposed is in excess of the Sentencing Guidelines as determined by the Court." [1] Neither issue presented by these appeals falls within that narrow exception, which, typically, would constrain our re-view. See United States v. Worden, 646 F.3d 499, 502-04 (7th Cir. 2011). But the Government's brief is silent about Mr. Kieffer's appeal waiver, so the Government has waived reliance on that waiver. United States v. Adigun, 703 F.3d 1014, 1022 (7th Cir. 2012). Second, at sentencing Mr. Kieffer did not object to the guidelines calculations or the order of restitution, so the parties agree that our review is limited to plain error.

As for the merits, Mr. Kieffer first argues that the district court overstated his total offense level by including the four uncharged robberies when applying the multiple-count adjustment of ยง 3D1.4. He denies stipulating that he committed those robberies and argues that, instead, he stipulated ...


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