                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-1703
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               * Appeal from the United States
                                       * District Court for the
Derek John Archambault, also           * District of South Dakota.
known as Derek Martinez,               *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: May 13, 2003

                                 Filed: October 2, 2003
                                  ___________

Before MORRIS SHEPPARD ARNOLD, HANSEN, and SMITH, Circuit Judges.
                         ___________

SMITH, Circuit Judge.

      Derek John Archambault pleaded guilty to one count of arson (in violation of
18 U.S.C. §§ 81 and 1153). At sentencing, the district court1 upwardly departed
pursuant to Sentencing Guidelines §§ 4A1.3 and 5K2.7. On appeal Archambault




      1
         The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
argues that the departure was unwarranted and that the government breached its plea
agreement.2 We disagree and affirm the sentence of the district court.

                                         I.
       On the evening of January 3, 2001–after a week of drinking and consuming
pills–Archambault ignited and burned two vans. The vans belonged to the Bullhead
Rock Creek District Community Center. As a result of the arson, the Rock Creek
District could not use its vans to transport meals to the elderly, youths to special
events, and other Rock Creek District members to community events.

      The next day, tribal police arrested Archambault, and on November 20, 2001,
Archambault pleaded guilty to one count of arson. The plea agreement provided that
the United States Attorney's Office would "recommend that the Court consider
imposing a sentence of imprisonment at the lower end of the appropriate guideline
range." After Archambault entered his plea, the United States Probation Office began
its presentence investigation. During a presentence investigation interview,
Archambault admitted to–among other things–selling marijuana, abusing inhalants,
alcohol, amphetamines, and marijuana, and stealing approximately $1,000 per week.
Archambault's counsel was not present during this interview.

       After concluding its investigations, the Probation Office determined that
Archambault's offense level was nine, his criminal history category was I, and his
sentencing guidelines range was four to ten months. However, at sentencing the
district court upwardly departed from this range and sentenced Archambault to
twenty-three months' incarceration. The district court based its upward departure on
two factors. First, the district court relied upon Sentencing Guidelines § 5K2.7 and


      2
        Archambault has waived his third argument–that the district court erred when
it failed to allow the defendant an opportunity for allocution at sentencing.
Appellant's Br. at 25–26.

                                        -2-
concluded that Archambault's criminal acts significantly disrupted a Rock Creek
District governmental function. Second, the district court relied upon Sentencing
Guidelines § 4A1.3 and found that Archambault's criminal history category
significantly under-represented his past criminal conduct. Archambault appealed and
alleges two errors.

                                           II.
       First, Archambault argues that the district court impermissibly upwardly
departed from Archambault's Guidelines range. Previously, we would have reviewed
a district court's upward departure for an abuse of discretion. United States v. Koon,
518 U.S. 81, 98–100 (1996). However, recent legislative changes have modified our
standard. Prosecutorial Remedies and Other Tools to end the Exploitation of Children
Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21, § 401(d), 117 Stat. 650, 670
(2003) (amending 18 U.S.C. § 3742(e)). Now, "[w]hether the district court based a
departure on a permissible factor . . . is to be reviewed de novo."3 United States v.
Flores, 306 F.3d 760, 763 (8th Cir. 2003) (citing id.). Nevertheless, "[a] sentencing
court's factual findings are still reviewable for clear error and the reasonableness of
a permissible departure for abuse of discretion." Id.

        "A factor is a permissible basis for departure if it 'advances the objectives set
forth in [18 U.S.C. § ] 3553(a)(2),' 'is authorized under [18 U.S.C. § ] 3553(b),' and
'is justified by the facts of the case.'" Id. (citing 18 U.S.C. § 3742(j)(1)). In this case,
the district court cited two factors to justify its upward departure–the failure of
Archambault's criminal history category to reflect adequately the seriousness of his
past criminal conduct and the fact that his crime significantly interrupted a


       3
        If a district court departs from the guideline range, the PROTECT Act also
requires that the court state its reasons for departing "with specificity in the written
order of judgment and commitment . . . ." § 401(c), 117 Stat. at 669 (amending 18
U.S.C. § 3553(c)(2)). However, neither party raised this as an issue in this case.

                                            -3-
governmental function. We conclude in this case that these factors are permissible
grounds for an upward departure.

       First, both of these factors meet the first requirements of § 3742(j)(1)–they
advance the objectives of § 3553(a). As we noted in Flores, a district court advances
"the statutory sentencing objectives of 'afford[ing] adequate deterrence to criminal
conduct,' § 3553 (a)(2)(B) and 'protect[ing] the public from further crimes of the
defendant,' § 3553 (a)(2)(C)," when it takes into account past criminal conduct. 336
F.3d at 764. Moreover, when the district court took into account the fact that
Archambault's crime significantly interrupted a government function, it advanced the
statutory sentencing objective of "reflect[ing] the seriousness of the
 offense, [ ]promot[ing] respect for the law, and [ ] provid[ing] just punishment for
the offense." 18 U.S.C. § 3553 (a)(2)(A).

      In addition, both factors are authorized under § 3553(b)(1). Section 3553(b)(1)
authorizes a court to depart based on a fact that was "not adequately taken into
consideration by the Sentencing Commission in formulating the guidelines . . . ." The
Commission expressly provided for the departures the district court made. See U.S
Sentencing Guidelines Manuel §§ 4A.1.3 and 5K2.7. In so doing, the "Commission
has acknowledged that it could not adequately account for all circumstances that
might arise" in these situations, and thus a departure under such circumstances would
be warranted. Flores, 336 F.3d at 764.

      Finally, the facts of the case warrant a departure under §§ 4A.1.3 and 5K2.7 of
the Guidelines. We first conclude that Archambault's criminal history category of I
does not adequately reflect the seriousness of his past criminal conduct, see U.S.
Sentencing Guidelines Manuel § 4A.1.3, because one of Archambault's counts of
arson was dismissed. United States v. Casey, 158 F.3d 993, 996–97 (8th Cir. 1998)
(“[T]he Sentencing Guidelines unquestionably allow [a court] to consider conduct
from uncharged or dismissed counts” to justify a departure to a more serious criminal

                                         -4-
history category.). Moreover, during a presentence investigation interview,
Archambault admitted to–among other things–selling marijuana, abusing inhalants,
alcohol, amphetamines, and marijuana, and stealing approximately $1,000 per week.
Archambault does not contest this prior criminal conduct.4

       An upward departure is also justified because the facts show that
Archambault's arson significantly interrupted a governmental function. See U.S.
Sentencing Guidelines Manuel § 5K2.7. The Rock Creek District used the vans that
Archambault destroyed or damaged to deliver meals on wheels, to transport district
youth to community events, and to provide transportation to community members for
travel. While the disruption did not stop the meals on wheels program, the District
Chairman testified the loss caused many of the other members of the community to
lose their source of transportation for three months. As the district court noted, the
Rock Creek District is a “very impoverished area where the vast majority of the
people are people of low income, without their own source of transportation . . . .” Tr.
Sentencing Hr'g, at 18 (Feb. 26, 2002); see also North Dakota Indian Affairs
Commission, Facts and Profiles: Indians in North Dakota 14 (1999), available at
http://www.health.state.nd.us/ndiac/pubs/FactsProfiles.pdf (noting that "[m]ost


      4
        Instead, he argues that such statements were obtained without the benefit of
counsel in violation of the Sixth Amendment. The Sixth Amendment, however, does
not apply to this issue. Archambault voluntarily participated in the presentence
investigation. Furthermore, Archambault "has not alleged or shown that his attorney's
presence was requested or that his attorney was excluded from the interview." United
States v. Bald Eagle, 997 F.3d 1234, 1235 (8th Cir. 1993). In fact, Archambault's
attorney concedes that he had a right to be present for the presentence interview, that
he was notified of when and where the interview was to take place, but that he chose
not to attend the interview (because of a conflict in his schedule and the distance to
where the defendant was incarcerated). Thus, no Sixth Amendment violation exists.
Moreover, we note that "no court has found the Sixth Amendment right applies to
routine presentence interviews." United States v. Tyler, 281 F.3d 84, 96 & n. 15 (3d
Cir. 2002) (citing cases).

                                          -5-
transportation [for the Rock Creek District] is by privately owned vehicles and [that]
finding a ride is a major problem for individuals without vehicles"). Such a disruption
for people who depended on these vans for transportation is–in our
judgment–significant.

        Archambault also argues that a Native American Tribal District is not a
“governmental entity” for purposes of § 5K2.7. We disagree. Unless the Sentencing
Guidelines provide a special definition of the particular term whose meaning is at
issue, we give the language of the Guidelines its ordinary meaning. Chapman v.
United States, 500 U.S. 453, 462 (1991). Government is defined as "the body of
persons that constitutes the governing authority of a political unit or organization
. . . ." Webster's Third New International Dictionary 982 (3d ed. 1976); see also
Black's Law Dictionary 695 (6th ed. 1990) ("The system of polity of a state; that form
of fundamental rules and principles by which a nation or state is governed . . . .") The
Rock Creek District is a recognized governing authority of the Standing Rock Sioux
Tribe–a sovereign entity under federal law. Act of Mar. 2, 1889, ch. 405, § 3, 25 Stat.
888, 889 (codified as amended 25 U.S.C. §§ 476, 477). As such, it is a "body of
persons that constitutes the governing authority of" the Standing Rock Sioux Tribe
and is a "governmental entity" under § 5K2.7 of the Guidelines.

      Thus, for the foregoing reason, we conclude that an upward departure was
warranted in this case.

                                             III.
      Archambault also argues that the Government breached its plea agreement
because it failed to object to the district court's upward departure. Archambault's plea
agreement stated that the United States Attorney's Office would "recommend that the
Court consider imposing a sentence of imprisonment at the lower end of the
appropriate guideline range." Yet, at sentencing, the Assistant United States Attorney
did not bring the agreed recommendation to the attention of the District Court Judge.

                                          -6-
However, we have previously rejected Archambault's argument. United States v.
Cohen, 60 F.3d 460, 462 (8th Cir. 1995). In Cohen, we were faced with nearly the
same situation. There, the Government stated that it had "no specific recommendation
as to [the defendant's] sentence," despite promising in its plea agreement that it would
recommend a sentence at the low end of the Guidelines range. Id. Nevertheless, we
reasoned that because Cohen's defense counsel neither objected, nor questioned the
Government's silence at any time during the sentencing, Cohen failed to preserve his
objection for appeal. Id.

       Likewise in this case, the Government did not recommend that Archambault
be sentenced at the low end of the Guidelines range. Also similarly, Archambault, like
Cohen, failed to raise an objection or otherwise comment on the Government's
silence. As we noted in Cohen, Archambault could have done any number of things
to preserve the objection:

      [He] could have raised an immediate objection to the statement, thereby
      requiring the prosecutor to make the specific recommendation it had
      promised. Second, he could have asked for a continuance for the
      purpose of recalling the Assistant United States Attorney who had made
      the promise. Third, he could have restated the terms of the agreement in
      open court. Fourth, he could have moved to withdraw the plea. Having
      elected to take none of these actions, he cannot now raise an
      eleventh-hour attack on the validity of his plea.

Id. (citations omitted). As we noted in Cohen, it would be unfair to permit
Archambault "to sit idly by at the time of sentencing, when by exercising any one of
the courses of action open to him he could have obtained a clarification and
correction of the government's position . . . ." Id. Thus, based on the precedent of
Cohen, we conclude that Archambault has waived his right to appeal this issue.

                                      IV.
      Accordingly, we affirm the judgment of the district court.
                    ______________________________

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