                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 05-3023
      ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Darren Alan Maurstad,                  *
                                       *
            Appellant.                 *

      ___________                          Appeals from the United States
                                           District Court for the
      No. 05-3024                          District of South Dakota.
      ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
David George Foote,                    *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: March 13, 2006
                                Filed: July 19, 2006
                                 ___________

Before ARNOLD, JOHN R. GIBSON, and SMITH, Circuit Judges.
                           ___________
SMITH, Circuit Judge.

       Darren Alan Maurstad and David George Foote pleaded guilty to conspiracy
to possess methamphetamine with intent to distribute. Maurstad challenges the
reasonableness of his sentence, and Foote alleges miscellaneous sentencing errors. We
hold that Maurstad's sentence is reasonable, and we dismiss Foote's appeal due to the
valid waiver of appeal contained in his plea agreement.

                                     I. Background
       While traveling through South Dakota, Maurstad met Jamie Turkey in a bar.
The two became romantically involved. Eventually, Maurstad moved in with Jamie
and her family in Winner, South Dakota. After the couple secured their own residence,
Chad Turkey, Jamie's brother, introduced Maurstad to a man named Southy
Thepmontry. Thepmontry distributed methamphetamine in Winner and enlisted
Maurstad to assist in the distribution. Maurstad permitted Foote and Jamie Turkey to
distribute methamphetamine from his home.

      At sentencing, the district court1 attributed 10.5 grams of methamphetamine to
Maurstad but not the additional quantities distributed by the other members of the
conspiracy. The district court calculated an offense level of 15 and a criminal history
category of VI. The resulting advisory Guidelines range was 41 to 51 months'
imprisonment.

       The district court then concluded that the Guidelines substantially
underrepresented Maurstad's lengthy criminal history. Maurstad received 28 criminal
history points, 15 more than what is required to reach a category VI criminal history,
the highest possible category. Thus, the district court considered Maurstad's category
VI criminal history "totally inadequate." The district court noted that Maurstad "has

      1
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

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been committing crimes since age 12 and has basically never stopped committing
crimes," remarking that Maurstad "has spent the majority of his life in juvenile and
adult correctional institutions." The district court also pointed out that Maurstad did
not receive criminal history points for several of his prior offenses.

        Applying the sentencing factors contained in 18 U.S.C. § 3553(a), the district
court found that a sentence above the advisory Guidelines range was warranted based
primarily on Maurstad's lengthy and underrepresented criminal record. Specifically,
the court noted the need for Maurstad's sentence to deter such criminal conduct,
protect the public from him, and rehabilitate him. (Sent. Tr. 19). The court decided
that a 120-month sentence was reasonable under the circumstances. Maurstad appeals,
arguing that his sentence is unreasonable.

       Foote appeals his sentence, arguing that it exceeds the statutory maximum and
violates the Sixth and Eighth Amendments to the United States Constitution. The
advisory Guidelines range was 210 to 262 months' imprisonment, based on a total
offense level of 32 and a criminal history of category VI, given his status as a career
offender. However, the statutory maximum of 240 months' imprisonment capped the
Guidelines range. The district court sentenced Foote to 240 months' imprisonment,
ordering that his federal sentence begin to run after Foote served 18 months of a 10-
year state sentence on a burglary conviction. The United States posits that Foote
waived the right to appeal his sentence. In paragraph 15 of his plea agreement, Foote
waived his right to appeal his sentence under 18 U.S.C. § 3742, excluding the right
to appeal the reasonableness of his sentence if it exceeded the advisory Guidelines
range. Foote counters that his sentence satisfies the narrow exception to the general
rule enforcing appeal waivers set forth in United States v. Andis, 333 F.3d 886, 892
(8th Cir. 2003).




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                                     II. Discussion
                                A. Maurstad's Sentence
       In sentencing a defendant, the district court should first calculate the advisory
Guidelines range. United States v. Sitting Bear, 436 F.3d 929, 934 (8th Cir. 2006).
Second, the district court should consider whether any departure is warranted under
the Guidelines. Id. Third, the district court should consider the sentencing factors of
18 U.S.C. § 3553(a) and impose a reasonable sentence. Id. at 934–35. We review the
reasonableness of a sentence for an abuse of discretion. United States v. Sebastian,
436 F.3d 913, 915 (8th Cir. 2006). "[A]n abuse of discretion may occur when (1) a
court fails to consider a relevant factor that should have received significant weight;
(2) a court gives significant weight to an improper or irrelevant factor; or (3) a court
considers only the appropriate factors but in weighing those factors commits a 'clear
error of judgment.'" United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005) (citing
Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)). Where a defendant's
criminal history is substantially underrepresented by the Guidelines, an extraordinary
upward departure or variance may be reasonable, provided that it is justified by
extraordinary circumstances. United States v. Lyons, ___ F.3d ___, 2006 WL
1667635, at *2 (8th Cir. 2006); United States v. Kendall, 446 F.3d 782, 785 (8th Cir.
2006); United States v. Shannon, 414 F.3d 921, 923–24 (8th Cir. 2005).

      Maurstad's sentence withstands our reasonableness review. He has an extensive
criminal history, spending most of his life in the penal system, either incarcerated or
on parole. The district court characterized Maurstad's involvement with the penal
system as "serving life imprisonment on the installment plan." His criminal behavior
began at age 12 with several misdemeanor theft convictions and has escalated to
include now (at age 34) several felony burglary convictions, an illegal weapon charge,
domestic assault, forgery, and other theft-related convictions. Maurstad has often
escaped or absconded from jail and work release, including a recent escape from state
custody in 2004. Several times his parole has been revoked. Maurstad amassed 28
criminal history points, well beyond the 13 points required to classify him a category

                                          -4-
VI offender, the highest listed Guidelines classification. In addition, several of his
convictions resulted in no criminal history points under the Guidelines. Given
Maurstad's longstanding criminal behavior and his resistance to rehabilitation, his case
is analogous to our holdings in Lyons, 2006 WL 1667635, at *2, and Shannon, 414
F.3d at 923–24. Therefore, we affirm his sentence as reasonable.

       We note that the record is unclear whether the district court intended to impose
an upward departure under the Guidelines or an upward variance outside of the
Guidelines. In concluding the sentencing colloquy, the district court stated, "I'm going
to impose what used to be called upward departure. I'm going to sentence [Maurstad]
to 120 months of custody[.]" (Sent. Tr. 20). However, the court did not explicitly refer
to the Guidelines departure provisions. While we reiterate that departures under the
Guidelines should still be considered after Booker, see Sitting Bear, 436 F.3d at 934,
we uphold Maurstad's sentence because the same considerations that render the
upward variance reasonable could have also justified an upward departure under the
Guidelines. See Lyons, 2006 WL 1667635, at *2. The failure to explicitly consider a
departure under the Guidelines represents clear but harmless error given the
extraordinary circumstances present here that justify the extraordinary variance. See
Sitting Bear, 436 F.3d at 935 (citing United States v. Long Soldier, 431 F.3d 1120,
1122 (8th Cir. 2005)).

                                 B. Foote's Sentence
       Foote challenges his sentence in several respects, including an argument that
his sentence exceeds the statutory maximum. We hold that Foote waived his right to
appeal his sentence in his plea agreement with the United States. However, because
a sentence that violates the statutory maximum is subject to the "miscarriage of
justice" exception that precludes the enforcement of otherwise valid appeal waivers
announced in United States v. Andis, 333 F.3d 886, 891 (8th Cir. 2003) (en banc), we
briefly address why the sentence imposed here does not exceed the statutory
maximum. See United States v. Schulte, 436 F.3d 849, 850 (8th Cir. 2006) (stating that

                                          -5-
an illegal sentence could result in a miscarriage of justice and render an appeal waiver
unenforceable but that "any sentence imposed within the statutory range is not subject
to appeal" (brackets, citations, and quotations omitted)).

      18 U.S.C. § 3584(a) provides, in relevant part, that "if a term of imprisonment
is imposed on a defendant who is already subject to an undischarged term of
imprisonment, the terms may run concurrently or consecutively . . . ." See also
U.S.S.G. § 5G1.3(c) ("In any other case involving an undischarged term of
imprisonment, the sentence for the instant offense may be imposed to run
concurrently, partially concurrently, or consecutively to the prior undischarged term
of imprisonment to achieve a reasonable punishment for the instant offense.").

       Foote alleges that his sentence exceeds the statutory maximum because the
district court elected to run the federal sentence concurrent with all but 18 months of
his state sentence for burglary. This argument fails. Foote was subject to an
undischarged term of imprisonment when he was sentenced by the district court.
Consequently, the district court could order the sentences to run consecutively,
concurrently, or partially concurrently. The fact that the district court elected to run
the sentences concurrent in part does not change the fact that Foote was sentenced to
no more than 240 months' imprisonment for the instant offense.

      Because Foote's sentence is within the statutory range, the appeal waiver
contained in his plea agreement is enforceable. See Schulte, 436 F.3d at 850.
Consequently, we dismiss his appeal.

                                  III. Conclusion
      We hold that Maurstad's sentence is reasonable because the Guidelines failed
to adequately account for his extraordinary criminal history, supporting the
extraordinary upward variance imposed by the district court. We further hold that
Foote waived his right to appeal his sentence, and we dismiss his appeal.
                       ______________________________

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