                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-3506
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *    Appeal from the United States
      v.                               *    District Court for the
                                       *    District of Minnesota.
Edward Sistrunk,                       *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: November 17, 2005
                                Filed: January 6, 2006
                                 ___________

Before WOLLMAN, LAY, and MELLOY, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

       Edward Sistrunk pled guilty to one count of bank fraud, a violation of 18
U.S.C. § 1344. The district court1 sentenced Sistrunk to twenty-one months’
imprisonment and ordered Sistrunk to pay $29,940 in restitution. Sistrunk appeals
from the judgment. We dismiss Sistrunk’s appeal from his sentence, and we affirm
the restitution order.




      1
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
      Sistrunk participated in two bank fraud schemes. In the first scheme, Sistrunk
defrauded Wells Fargo Bank of $19,200. In the second scheme, Sistrunk and his
brother defrauded TCF Bank. A federal grand jury returned a fifteen-count
superseding indictment against the two, which charged them with conspiracy to
commit bank fraud and aiding and abetting each other to illegally obtain funds from
Wells Fargo and TCF.

       Sistrunk and the United States entered into a plea agreement. The agreement
provided that Sistrunk would plead guilty only to the bank fraud against Wells Fargo,
yet he would be “accountable under the relevant conduct provisions of the Sentencing
Guidelines for the bank fraud which occurred . . . at TCF bank. The parties agree
that the loss to both banks [TCF and Wells Fargo] is between $30,000 and $70,000.”
Plea Agreement at 3. During the plea hearing, Sistrunk reiterated his responsibility
to TCF. The district court ordered restitution in the amount of $19,200 to Wells
Fargo and $10,740 to TCF.

       As part of the plea agreement, Sistrunk waived his right to appeal his sentence.
Specifically, the plea agreement states, “[T]he defendant hereby waives all rights
conferred by Title 18, United States Code, Section 3742 to appeal his sentence, unless
the Court sentences the defendant above offense level 10.” Plea Agreement at 8.
During the plea colloquy, the district court addressed the consequences of the waiver
and explained that, “Provided that I sentence you at a level of 10 or less, . . . you are
giving up the right to appeal the sentence.” Plea Hr’g Tr. at 37. Sistrunk
acknowledged that he understood this waiver. The district court found the offense
level to be ten and, as stated above, sentenced Sistrunk to twenty-one months’
imprisonment.

       The United States argues that Sistrunk waived his right to appeal. We agree
that Sistrunk waived his right to appeal from the sentencing order, but we conclude
that the appeal from the restitution order is beyond the scope of the waiver. “When

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reviewing a purported waiver, we must confirm that the appeal falls within the scope
of the waiver and that both the waiver and plea agreement were entered into
knowingly and voluntarily.” United States v. Andis, 333 F.3d 886, 889–90 (8th Cir.
2003) (en banc). Because plea agreements are essentially contracts between the
defendant and the Government, we must look to the language of the agreement to
determine the scope of an appeal waiver. Id.; United States v. Reeves, 410 F.3d 1031,
1034 (8th Cir. 2005).

       We conclude that Sistrunk knowingly and voluntarily waived his right to
appeal his sentence. The plea agreement states the waiver in unambiguous terms, and
thus we refuse to consider Sistrunk’s contention that the district court erred in ruling
that he was not a minor participant.

       Sistrunk did not, however, waive his right to appeal the restitution order. We
addressed this issue in United States v. Cupit, 169 F.3d 536 (8th Cir. 1999) (per
curiam), and United States v. Greger, 98 F.3d 1080 (8th Cir. 1996). In Greger, we
held that the waiver included the restitution award because the parties agreed to waive
their possible appeals on all issues except jurisdiction. 98 F.3d at 1081–82.
Conversely, in Cupit, we held that the waiver did not include the restitution award
because the agreement stated that the parties, “waive all rights to appeal whatever
sentence is imposed[.]” 169 F.3d at 539. The language of Sistrunk’s plea agreement
is almost identical to that in Cupit. Accordingly, we turn to the merits of Sistrunk’s
appeal from the restitution order.

      We have held that United States v. Booker, 543 U.S. 220 (2005); Blakely v.
Washington, 542 U.S. 296 (2004); and Apprendi v. New Jersey, 530 U.S. 466
(2000), do not prohibit judicial fact finding for restitution orders. United States v.
Carruth, 418 F.3d 900, 904 (8th Cir. 2005). We therefore review the district court’s
findings of loss for clear error. Id. Sistrunk does not dispute the $19,200 owed to
Wells Fargo because the plea agreement specifically states that amount, but he argues

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that the district court erred when it ordered him to pay $10,740 to TCF because he
had not admitted to nor been convicted of that amount. We conclude that the record
supports the district court’s finding. During the sentencing proceeding, the district
court noted that it ordered restitution to TCF based on the plea agreement, Sistrunk’s
admission during the plea hearing, and the undisputed evidence that a TCF check was
recovered from Sistrunk. Criminal Sentencing Proceedings Tr. at 47–49. Although
the plea agreement does not stipulate an amount for restitution, the district court did
not clearly err by ordering restitution in the amount of $10,740 to TCF.

     Accordingly, we dismiss Sistrunk’s appeal as to his sentence and affirm the
judgment imposing restitution in the amount of $29,940.
                     ______________________________




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