                   UNITED STATES COURT OF     APPEALS

                        FOR THE FIFTH CIRCUIT


                             NO. 96-20989
                           Summary Calendar


                      UNITED STATES OF AMERICA,
                                                    Plaintiff-Appellee



                                VERSUS



                          RICHARD E. SOMNER
                                                   Defendant-Appellant


             Appeal from the United States District Court
                  for the Southern District of Texas

                           October 28, 1997

Before JOLLY, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM:

                                  I.

        In the Fall of 1991, Appellant Somner seduced his minor

neighbor (“Jane Doe”), and by June, 1992, began having sexual

intercourse with her.      She was only thirteen (13) years old.

Somner got her pregnant, and on August 8, 1992, when it appeared

that the police were closing in, Somner convinced her to leave the

state with him.1    They left together in Somner’s vehicle early on

the morning of August 9, 1992, and traveled to Oklahoma City.     From


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     The police were alerted to the fact that Somner might be molesting
Jane Doe via a tip from Somner’s ex-wife, Becky, who found several love
letters written to Somner by Jane Doe.

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there they drifted to Wisconsin, Oregon, Washington, Ohio, Georgia,

Tennessee, Florida, Texas, and finally Arizona.                   During that time

Jane Doe gave birth to two children fathered by Somner.                    After they

moved to Kingman, Arizona, in April, 1995, Jane Doe noticed Somner

hugging, kissing and fondling two young girls (10 and 12 years of

age),   who    lived      next    door.      Shortly     thereafter,       Somner   was

apprehended in December 14, 1995, after over three years in hiding,

thanks to an FBI trace of a phone call made to Becky Somner’s home.

                                           II.

     On     June     3,   1996,     Somner       plead   guilty   on   a    two-count

information charging him with, Count One, interstate transportation

of a minor with the intent that the minor engage in illegal sexual

activities with the defendant, in violation of 18 U.S.C. § 2423(a),

and, Count Two, travel in interstate commerce with the intent that

he engage in illegal sexual contact with a minor, in violation of

18 U.S.C. § 2423(b).             The district court sentenced Somner to the

statutory maximum of 120 months and three (3) years supervised

release.      Somner was also convicted in Texas state court on seven

counts arising out of his conduct with Jane Doe in Texas.

     The district court calculated Somner’s base level under the

Sentencing Guidelines as sixteen (16).                   The district court then

added the following enhancements:

1)   Four      (4)    levels       under   U.S.S.G       §   2G1.2(b)(1)(“coercion

enhancement”), which allows a four (4) level increase “[i]f the

offense involved the use of physical force, or coercion by threat

or drugs or in any manner ...;”


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2)   Two    (2)    levels     under       U.S.S.G.    §   2G1.2(b)(3)(“age

enhancement”), which allows a two (2) level increase if the victim

is a minor “at least twelve years of age but under the age of

sixteen ...;”

3)   Two (2) levels under U.S.S.G. § 3A1.1(b)(“vulnerable victim

enhancement”), which allows a two (2) level increase “[i]f the

defendant knew or should have known that a victim of the offense

was unusually vulnerable due to age, physical or mental condition,

or that a victim was otherwise particularly susceptible to the

criminal conduct ...”       The district court was clear that this

increase was made for reasons other than Jane Doe’s age, thereby

avoiding any double-enhancement under U.S.S.G. §§ 2G1.2(b)(3) and

3A1.1(b).   In particular, the evidence indicated that Jane Doe had

experienced some family problems, which Somner siezed upon as an

opportunity to become her confidant, later convincing her that she

had been molested by her father.          Jane Doe’s natural response was

to see Somner as her protector.           All of this made her unusually

vulnerable to Somner’s sexual opportunism.           In other words, Somner

saw a weakness in Jane Doe’s relationship with her parents, which

made her more vulnerable than others her age, and he exploited it;

4)   Two    (2)   levels    under     U.S.S.G.   §    3C1.1   (“obstruction

enhancement”), which allows a two (2) level increase “[i]f the

defendant willfully obstructed or impeded, or attempted to obstruct

or impede, the administration of justice during the investigation,

prosecution, or sentencing of the instant offense ...;”

5)   Two (2) levels under U.S.S.G. § 3C1.2, which allows a two (2)


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level increase “[i]f the defendant recklessly created a substantial

risk of death or serious bodily injury to another person in the

course of fleeing from a law enforcement officer ...”

The district court then subtracted three (3) levels under U.S.S.G.

§ 3E1.1, because Somner had accepted responsibility for his actions

and fully allocuted to all the facts surrounding the three-year

abduction.

     Therefore, Somner’s point total stood at twenty-five (25),

which equates to a sentencing range from 84 to 105 months. 9 U.S.C.

§ 5A (Table). However, the district court granted the government’s

motion for an upward departure, and added two (2) levels, which

increased the range from 100 to 125 months, and the district court

imposed a sentence of 120 months.

     In calculating Somner’s criminal history point total, the

district       court     aggregated         Somner’s   seven      (7)     Texas     state

convictions       but    refused      to     combine      them    with    the     federal

conviction.      The result of the district court’s refusal to combine

the Texas and federal convictions was the addition of three (3)

points    to    Somner’s      criminal       history      total   under    U.S.S.G.     §

4A1.1(a), which allows a three (3) point increase for each prior

sentence of imprisonment exceeding one year and one month, plus

another three (3) points under U.S.S.G. § 4A1.1(f) for crimes of

violence.      See     U.S.   v.    Kirk,    111   F.3d    390,   393-96    (5th     Cir.

1997)(discussing whether certain Texas sex-offenses are crimes of

violence under the guidelines).

     On    this      appeal,       Somner    challenges     the    district       court’s


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application      of:     the    coercion       enhancement       under   U.S.S.G.   §

2G1.2(b)(1); the vulnerable victim enhancement under U.S.S.G. §

3A1.1(b);    and,      the     obstruction      of    justice    enhancement   under

U.S.S.G. § 3C1.1 (Numbers 1, 3 and 4, above).                            Somner also

challenges       the    upward     departure         and   the   district    court’s

calculation of his criminal history point total.

                                       III.

       Before we reach the merits of Somner’s appeal, there is the

matter of the “appeal waiver” contained in Somner’s plea agreement.

The waiver contains the following language:

       The defendant is aware that Title 18, U.S.C. § 3742
       affords a defendant the right to appeal the sentence
       imposed.   Understanding that, the defendant agrees to
       voluntarily waive the right to appeal ... the sentence or
       the manner in which it was determined ... However, the
       defendant may appeal a sentence: ... (b) that includes an
       upward departure from the Sentencing Guidelines, which
       upward departure had not been requested by the United
       States Attorneys Office or (c) that includes or is based
       on a material and unlawful misapplication of the
       Sentencing Guidelines by the Court.

Somner did knowingly and voluntarily sign the plea agreement to the

extent that is possible. See U.S. v. Melancon, 972 F.2d 566, 571

(5th      Cir.         1992)(Parker,           District      Judge,       concurring

specially)(expressing reservations about whether a presentence

waiver can knowingly and voluntarily waive the right to appeal the

sentence). Therefore, the appeal waiver is binding. U.S. v. Price,

95 F.3d 364, 369 (5th Cir. 1996), citing U.S. v. Melancon, 972 F.2d

566 (5th Cir. 1992).

       The waiver effectively bars Somner’s challenge to the district

court’s upward departure, because the departure was requested by


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the government.      Since exception (b) in the waiver allows appeals

of upward departures not requested by the government, the negative

implication is that upward departures which are requested by the

government are still subject to the waiver.        However, the scope of

exception (c) to the appeal waiver is so broad that a significant

question exists whether the other issues raised by this appeal have

actually been foreclosed.

       The waiver must be construed against the government.2       U.S. v.

Rosa, 1997 WL 469962 (2nd Cir. (N.Y.)), citing U.S. v. Ready, 82

F.3d 551, 556 (2d Cir. 1996); U.S. v. Tayman, 885 F. Supp.832, 835

(E.D. Va. 1995), citing U.S. v. Harvey, 791 F.2d 294, 300 (4th

Cir.1986).     Consequently, there is no basis for a restrictive

reading of the waiver, and therefore, exception (c) has largely

swallowed    the    waiver.   Read   literally,   the   waiver   would   not

foreclose review of the issues of enhancement or criminal history

calculation under the guidelines, since those errors involve a

possibly “material and unlawful misapplication of the Sentencing

Guidelines”.       There can be little doubt that those errors pertain

to the application of the Sentencing Guidelines by the district

court to the peculiar facts of this case.         It may be argued that

the misapplications of the Sentencing Guidelines in this case are

not material, because the district court intended to depart from

the guidelines and impose the maximum sentence, regardless of how

the math came out.      However, if the guidelines had been applied as

   2
     Interestingly enough, the government agrees that, with the exception
of the departure issue, the sentencing issues encompass claims of unlawful
misapplication of the guidelines and are appealable.

                                     6
Somner insists, then the district court might not have been able to

justify the even greater departure necessary to reach the maximum.

Therefore, we conclude that the appeal waiver forecloses review of

the upward departure issue only.

                                     IV.

     The    district    court’s      enhancements     under   U.S.S.G.     §§

2G1.2(b)(1)(“coercion”), 3A1.1(b)(“vulnerable victim”) and 3C1.1

(“obstruction”) are reviewed for clear error. U.S. v. Campbell, 49

F.3d 1079, 1085 (5th Cir. 1995), cert. denied, ___ U.S. ___, 116 S.

Ct. 201, 133 L. Ed. 2d 135 (1995)(district court factual finding

that offense was committed by use of coercion is reviewed for clear

error);    U.S.   v.   Robinson,     119   F.3d   1205,    1218   (5th   Cir.

1997)(district court finding of unusual vulnerability reviewed for

clear error)(citing cases); U.S. v. Rickett, 89 F.3d 224, 226 (5th

Cir. 1996), cert denied, ___ U.S. ___, 117 S. Ct. 499, 136 L. Ed.

2d 391 (1996)(district court finding that defendant obstructed

justice    reviewed    for   clear    error).       The   district   court’s

determination that Somner’s Texas and federal convictions did not

arise out of a common scheme or plan, such that they should

combined for calculation of Somner’s criminal history total, is

reviewed for clear error. U.S. v. Vital, 68 F.3d 114, 118 (5th Cir.

1995).     The district court’s determination that the Texas and

federal cases were not related within the meaning of U.S.S.G. §

4A1.2(a)(2) is viewed as an application of the guidelines subject

to de novo review. U.S. v. Garcia, 962 F.2d 479, 481 (5th Cir.

1992), cert denied, 506 U.S. 902, 113 S. Ct. 293, 121 L. Ed. 2d 217


                                      7
(1992).

     Our review of the record reveals no clear error by the

district court in its application of U.S.S.G. §§ 2G1.2(b)(1),

3A1.1(b) and 3C1.1.   Likewise, the record reveals no error by the

district court in its determination that the Texas and federal

offenses were not committed as part of a common scheme or plan or

otherwise related within the meaning of U.S.S.G. § 4A1.2(a)(2),

such that they should be considered a single offense.   Therefore,

we affirm.

AFFIRM.



ENDRECORD




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JOLLY, Circuit Judge, concurring specially:

     I write separately only to emphasize that the government

conceded that all but one of the issues raised in this appeal fell

within an express exception to the waiver provision in Somner’s

plea agreement.    It is not clear what the government hoped to

accomplish with this somewhat ambiguous waiver. When considered as

a whole, the waiver is capable of more than one interpretation.   It

would be a mistake, however, to read the court’s opinion to suggest

that a defendant may not expressly waive his right to appeal any

and all issues.   The established law of this circuit provides that

a defendant may, by knowingly and voluntarily entering into a valid

plea agreement, waive the statutory right to appeal his sentence--

period. See United States v. Melancon, 972 F.2d 566, 568 (5th Cir.

1992).




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