                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             JUL 26 1999
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                     No. 98-1475
           v.                                            (D. Colorado)
 DIANA ROSE LUPPI,                                   (D.C. No. 98-CR-21-Z)

                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       On September 8, 1998, Diana Rose Luppi was convicted of using United

States Forest Service roads without a special use authorization, in violation of 16


       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
U.S.C. § 551; 43 U.S.C. § 1761; and 36 C.F.R. §§ 251.50, 261.10(k), and

261.54(a). Luppi now appeals that conviction, and, for the reasons discussed

below, we affirm.



                                 BACKGROUND

      In June 1995, Luppi purchased a parcel of land located near Pagosa

Springs, Colorado. The parcel is almost entirely surrounded by the San Juan

National Forest. Private parcels such as the one purchased by Luppi, which are

surrounded by federal land, are known as “inholdings.” Federal law requires the

Forest Service to provide inholders access to their property, provided that the

inholder “compl[ies] with rules and regulations applicable to ingress and egress to

or from the National Forest System.” 16 U.S.C. § 3210(a).

      The only access to Luppi’s land is via Forest Development Road 629 and a

short access road leading from Road 629. These roads are open to the public,

including Luppi, during the summer months, but are closed during the winter to

most traffic. When the snow begins to fall, Forest Service officials close and lock

a gate on Road 629 below the access road leading to Luppi’s property. Private

property owners living above the locked gate are allowed to pass through the gate

and travel on Road 629 and the access road during the winter, but only after they

have executed an easement agreement with the Forest Service and have paid a fee.


                                        -2-
The prior owners of Luppi’s parcel had executed such an agreement, had paid the

fee, and were allowed year-round access to the property.

      In the spring of 1996, Forest Service officials notified Luppi that she had

not yet transferred the easements obtained by the prior owner of the parcel into

her name, and that she needed to do so in order to be allowed access to her

property. Forest Service officials provided Luppi with a temporary permit to

allow her a few weeks to get the paperwork done and pay the required fees. In

April 1996, Luppi responded in writing by questioning the need for her to execute

an easement agreement and pay the fees. The Forest Service responded to each of

Luppi’s questions in a letter dated May 6, 1996, and again explained the need for

Luppi to obtain the required permit. Luppi sent the Forest Service a letter

expressing her desire to obtain the required easements, and the Forest Service

responded by sending Luppi the easement agreements for execution, and a bill for

the 1996 fees (which, at that time, amounted to $176.00).

      However, Luppi refused to sign the easement agreements or pay the fees.

In December 1996, the Forest Service sent Luppi another letter, again urging her

to sign the agreement and pay the fees. Enclosed with the letter was a new bill,

which included a $40 late fee and approximately $10 of interest. Luppi returned

the bill to the Forest Service marked “returned for cause and fraud,” and refused

to pay it or execute the agreements. I R. Doc. 27, Ex. 11. Luppi also sent the


                                         -3-
Forest Service 12 pages of largely incomprehensible legal argument allegedly

supporting her contention that she was not required to execute the agreement or

pay the fees. Her argument appears to be rooted in a belief that the Forest Service

does not actually own the lands that comprise the San Juan National Forest, and

therefore cannot legally require anyone to execute an easement agreement or pay

a fee for the privilege of traveling on Forest Service roads.

      During the spring of 1997, Forest Service officials met with Luppi on

several occasions to attempt to resolve her concerns, but were unsuccessful in

persuading her to comply with regulations. The Forest Service offered to waive

all late fees and interest, if Luppi would just pay the original fees and sign the

documents. Luppi refused. In one final attempt to reach compromise, the Forest

Service sent Luppi a letter informing her that there was a way for her to comply

without having to actually sign an agreement herself, by joining a road users

association which obtained easements on behalf of its members. Luppi did not

respond to this suggestion.

      Finally, in August 1997, after all efforts to reconcile the situation had

failed, the Forest Service issued Luppi a citation for using National Forest roads

without the required special use authorization. Even after issuing the citation,

however, Forest Service officials continued to meet with Luppi to try to amicably

resolve the situation.


                                          -4-
      Later that fall, the Forest Service sent Luppi another bill, accompanied by

three more copies of a completed easement agreement for execution. This bill

was for the 1997 fees, and was for $256.00.         1
                                                        Luppi paid this bill in late

September, but still refused to execute the easement agreements.

      In early 1998, the government obtained a three-count Information against

Luppi. Count I charged her with using the access road, without authorization,

between February 1997 and February 1998. Count II charged her with using Road

629 between April and May 1997. Count III charged her with using Road 629

between November 1997 and March 1998. These offenses are petty

misdemeanors, and are punishable with a maximum of six months’ imprisonment

and a $5,000 fine per count.   2
                                   However, the government has consistently declined

to press for prison time. Luppi appeared pro se before a magistrate judge in

Durango, Colorado, on January 15, 1998, and requested that her case be heard by

a district judge rather than by a magistrate judge. She also requested a jury trial,

but this request was denied. The magistrate judge also declined to appoint


      1
       Some of the easement fees had been raised by the Forest Service in the
interim.
      2
        Although the maximum fine listed in 16 U.S.C. § 551 is $500, this
limitation is superseded by 18 U.S.C. § 3571(b)(6) and (e). Because 16 U.S.C.
§ 551 does not specifically exempt offenses committed under it from the purview
of 18 U.S.C. § 3571, the fine structure in § 3571 controls. See 18 U.S.C.
§ 3571(e). According to § 3571(b)(6), for petty offenses the maximum fine is
$5,000.

                                              -5-
counsel to represent Luppi, in view of the government’s consistent position not to

recommend any sentence involving prison time.

       Prior to trial, Luppi, who has insisted upon proceeding pro se throughout

this case despite repeated admonishments from the district court to obtain

counsel, filed a motion seeking to have her case dismissed, arguing essentially

that she had a common-law easement by necessity to traverse the Forest Service

lands to reach her own parcel. The district court denied this motion, and set the

case for trial.

       At trial, the government called only three witnesses, each of whom testified

that they had seen Luppi driving her vehicle on either the access road or on Road

629 itself during the months set forth in the indictment. One of the government’s

witnesses, Forest Service official Sonja Hoie, testified that the lands in question

were indeed Forest Service lands. Luppi did not offer an opening statement or

any witnesses of her own, and did not cross-examine the government’s witnesses.

Rather, Luppi offered a convoluted closing argument in which she again asserted

her right to a common-law easement and again asserted that the lands in question

were not Forest Service lands. At the close of her argument, Luppi moved the

court for an acquittal.

       Immediately following the close of Luppi’s argument, the district court

denied Luppi’s motion for acquittal, and ruled from the bench that Luppi was


                                         -6-
guilty of the offenses set forth in Counts I and III of the Information, but that the

government had not proven Count II. The district court found “beyond a

reasonable doubt that” the land in question was indeed Forest Service land

“governed by the statutes and regulations of the United States of America.” III

Supp. R. at 99, 100. The district court also found that Forest Service officials had

“clearly explained the statutes and the regulations” to Luppi, “were extremely

patient in trying to communicate” with Luppi, and had “spent a year and a half

trying to get her to comply cooperatively with the statutes and the regulations.”

Id. at 100, 101.

      At sentencing, the district court imposed a $5,000 fine on Count III, and

sentenced Luppi to one year of probation on Count I, with the probation subject to

the following conditions: that Luppi execute the easement agreements and pay

both past due and current fees, cooperate fully with the Forest Service, possess no

firearms, pay a $20 special assessment, and observe all standard conditions of

probation, one of which is that she is not allowed to leave the District of Colorado

without permission.

      Following sentencing, Luppi continued to refuse to pay the fine, fees, or

execute the agreements. In addition, after having been granted permission to

travel to Arizona for health reasons, Luppi did not return to Colorado on the date

set by the probation officer and failed to appear at a probation hearing before the


                                          -7-
district court. On May 21, 1999, the district court issued a bench warrant for

Luppi’s arrest.

       Prior to leaving Colorado, Luppi filed a timely notice of appeal, and now

appeals her conviction.   3
                              Her arguments on appeal are, in part, difficult to

decipher, but as far as we can tell Luppi makes the following assertions: (1) the

district court lacked subject matter jurisdiction over the case, because the land in

question is not National Forest land under federal control; (2) the district court

lacked personal jurisdiction over her; (3) she was denied her right to a trial by

jury; (4) she was denied her right to effective assistance of counsel; (5) her

sentence violated the Eighth Amendment’s ban on excessive fines; (6) her right to

travel was violated; (7) her rights under the Contracts Clause of the United States

Constitution were violated; and (8) the Forest Service discriminated against her

on the basis of her national origin, a “Citizen of the United States.”   4
                                                                             The

       3
        Luppi has already been before this court on two occasions in connection
with this case. After her motion for dismissal was denied, she filed an appeal
with this court seeking review of that decision. We dismissed that appeal for lack
of jurisdiction, because the order appealed from was not a final order. United
States v. Luppi, No. 98-1292, slip op. (10th Cir. Sept. 14, 1998); I R. Doc. 57, Ex.
6; see also 28 U.S.C. § 1291. After her sentence was imposed following her
conviction, she filed an “Emergency Motion for Writ of Mandamus” with this
court, seeking a stay of her criminal sentence pending appeal. We denied Luppi’s
motion. United States v. Luppi, No. 98-1475, slip op. (10th Cir. Mar. 8, 1999).
       4
        Luppi also argues that several of these issues are worthy of en banc
consideration by this court. According to Fed. R. App. P. 35 and 10th Cir. R. 35,
petitions for en banc consideration are properly filed with a petition for rehearing,
                                                                        (continued...)

                                             -8-
government argues that Luppi’s claims are meritless, and in addition argues that

we should dismiss Luppi’s appeal based on the fugitive disentitlement doctrine.



                                   DISCUSSION

I.    The Fugitive Disentitlement Doctrine

      Generally, a “convicted defendant who has sought review [and who]

escapes from the restraints placed upon him pursuant to the conviction” is not

entitled to “call upon the resources of the Court for determination of his claims.”

Molinaro v. New Jersey , 396 U.S. 365, 366 (1970). The government asks us to

dismiss Luppi’s appeal because she violated her probation, fled the judicial

district, and failed to appear at a probation hearing.

      However, there seems to be some question as to whether Luppi is indeed a

fugitive. On the one hand, Luppi failed to return to Colorado as scheduled, and

failed to appear at the May 1999 probation hearing, resulting in a bench warrant

for her arrest. On the other hand, she was originally permitted to travel to



      4
        (...continued)
after a three-judge panel of this court has disposed of a party’s appeal.

        Notably, Luppi does not raise, in her appellate brief, one argument that she
pressed before the district court: that she possesses a common-law easement over
the Forest Service lands. Luppi wisely declines to press this argument on appeal,
as it is foreclosed by our holding in United States v. Jenks, 129 F.3d 1348, 1353-
55 (10th Cir. 1997).

                                         -9-
Arizona lawfully, and she has filed a response, from Arizona, to the government’s

dismissal motion, arguing that she failed to appear at the May 1999 hearing

because she never received notice of that hearing, and denying that she is a

fugitive. Her response brief even included a return address in Arizona. Under the

disputed factual circumstances of this particular case, it is more efficient to

proceed to the merits of the appeal than to conduct proceedings to determine

whether or not Luppi actually falls within the fugitive category.



II.   The Merits of Luppi’s Appeal

      As far as we can tell, Luppi raises eight distinct arguments. Several of

these claims, however, were not raised before the district court, and it is well

settled that “a federal appellate court does not consider an issue not passed upon

below.” Walker v. Mather (In re Walker)     , 959 F.2d 894, 896 (10th Cir. 1992)

(quoting Singleton v. Wulff , 428 U.S. 106, 120 (1976)). Our review of the record

reveals that Luppi failed to argue before the district court that (1) the court lacked

personal jurisdiction over her; (2) her right to travel was violated; (3) her rights

under the Contracts Clause were violated; and (4) she was discriminated against

on the basis of her national origin. Therefore, we decline to consider these

arguments.

      We will consider the remaining issues in turn.


                                          -10-
       A.     Subject Matter Jurisdiction

       First, Luppi claims that the district court did not have subject matter

jurisdiction over her case because, she asserts, the land in question—the San Juan

National Forest—is not owned by the federal government, but rather by the

“people of Colorado.” Appellant’s Br. at 7. Luppi is mistaken. Before Colorado

could become a state and join the Union, the state and its people had to “agree

and declare that they forever disclaim all right and title to the unappropriated

public lands lying within said territory, and that the same shall be and remain at

the sole and entire disposition of the United States.” Colorado Enabling Act, § 4.

Upon statehood, the federal government granted two out of every 36 sections of

land to the state to hold in trust for educational purposes,   id. § 7, but the

remainder of the public domain remained under federal control when Colorado

entered the Union in 1876.

       Over the years, Congress has reserved portions of this unappropriated

public domain land within Colorado for various specific federal purposes, such as

military installations, Indian reservations, national parks, national monuments,

wilderness areas, and national forests. In 1905, Congress created the San Juan

National Forest “by proclamation . . . out of lands formerly public domain.”

United States v. Boone , 476 F.2d 276, 278 (10th Cir. 1973). Therefore, the San

Juan National Forest is not now, and never has been, under the control of the


                                             -11-
State of Colorado or any political subdivision thereof (such as Archuleta County).

The San Juan National Forest has always been, and still is, under federal control.

Congress has the constitutional power to manage federal properties and to

regulate the activities which take place thereon.   See U.S. Const. art. IV, § 3, cl.

2; see also United States v. Jenks , 22 F.3d 1513, 1517 (10th Cir. 1994).   5



       Therefore, the district court correctly determined that it had subject matter

jurisdiction over Luppi’s case.




       B.     Right to Jury Trial

       Although the Sixth Amendment to the United States Constitution provides

that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and district wherein the crime

shall have been committed,” the Supreme Court has long held that “there is a



       5
        Luppi’s reliance on Utah Div. of State Lands v. United States, 482 U.S.
193 (1987), is misplaced. That case held that the title to Utah Lake, a navigable
body of water within the State of Utah, had passed to the state upon Utah’s
admission to the Union in 1896, pursuant to the “equal footing doctrine.”
According to that doctrine, the states “hold title to the land under navigable
waters within their boundaries.” Id. at 196. The equal footing doctrine does not
apply even to lands underlying non-navigable waters, see Koch v. Dep’t of
Interior, 47 F.3d 1015, 1019 (10th Cir. 1995), let alone to dry lands within a
national forest, see United States v. Gardner, 107 F.3d 1314, 1318-19 (9th Cir.
1997). Therefore, Utah Div. of State Lands is inapplicable to this case.

                                            -12-
category of petty crimes or offenses which is not subject to the Sixth Amendment

jury trial provision,”   Duncan v. Louisiana , 391 U.S. 145, 159 (1968). A “petty

offense” to which the jury trial right presumptively does not attach is “[a]n

offense carrying a maximum prison term of six months or less.”     Lewis v. United

States , 518 U.S. 322, 326 (1996) (citing   Blanton v. North Las Vegas , 489 U.S.

538, 542 (1989)). Even where a defendant is charged with multiple petty offenses

which, taken cumulatively, could result in a sentence longer than six months, the

Sixth Amendment right to a jury trial does not apply.    See Lewis , 518 U.S. at 330

(stating that “[w]here the offenses charged are petty, and the deprivation of

liberty exceeds six months only as a result of the aggregation of charges, the jury

trial right does not apply”).

       Here, Luppi was charged with three petty counts, none of which carried a

potential for more than six months’ imprisonment. Therefore, the Sixth

Amendment right to trial by jury did not apply to Luppi’s case, and the district

court properly refused to grant Luppi a jury trial.



       C.     Right to Effective Assistance of Counsel

       Although the Sixth Amendment states that “[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to have the Assistance of Counsel for his

defence,” the Supreme Court has held that “where no sentence of imprisonment


                                            -13-
was imposed, a defendant charged with a misdemeanor had no constitutional right

to counsel,” Nichols v. United States , 511 U.S. 738, 743 (1994) (citing   Scott v.

Illinois , 440 U.S. 367 (1979)). Here, Luppi was sentenced only to probation and a

fine. Therefore, the Sixth Amendment right to appointed counsel does not apply,

and the district court properly declined to appoint counsel to represent Luppi.



      D.     Eighth Amendment

      The Eighth Amendment provides that “excessive fines” shall not be

imposed, and that “cruel and unusual punishments” shall not be inflicted. Luppi

maintains that her punishment, consisting of one year’s probation and a $5,000

fine, was excessive and/or cruel and unusual punishment. Luppi’s punishment

fell within statutory mandated boundaries, and as such is presumptively valid.

See Rummel v. Estelle , 445 U.S. 263, 274 (1980);     United States v. Mejia-Mesa     ,

153 F.3d 925, 930 (9th Cir. 1998). Absent some extenuating circumstance, a

sentence which does not exceed the statutory maximum will not be overturned on

Eighth Amendment grounds.      See Mejia-Mesa , 153 F.3d at 930.

      Luppi argues only that the fine and probation “prevented the petitioner

from ‘legally’ driving to her home without violating Sentencing terms, and made

‘legal’ access to petitioner’s home contingent upon forced endorsement of

contract.” Appellant’s Br. at 5. We do not think that these circumstances, which


                                          -14-
are by nature present in every similar situation, are sufficient to overcome the

presumption that a sentence within statutory guidelines is not offensive to the

Eighth Amendment. The sentence imposed by the district court does not violate

Luppi’s Eighth Amendment rights.



                                  CONCLUSION

      For the foregoing reasons, the judgment and sentence of the district court

are AFFIRMED.

                                                ENTERED FOR THE COURT



                                                Stephen H. Anderson
                                                Circuit Judge




                                         -15-
