                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-3512
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
John M. Jenners,                         *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: May 13, 2008
                                 Filed: August 8, 2008
                                  ___________

Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.
                         ___________

SMITH, Circuit Judge.

       John M. Jenners pleaded guilty, pursuant to a plea agreement, to conspiracy to
commit bank fraud—in violation of 18 U.S.C. § 1344—counterfeiting, and aiding and
abetting counterfeiting—in violation of 18 U.S.C. §§ 474 and 2. After Jenners's initial
sentencing, the district court vacated his sentence on postconviction review, finding
that Jenners received ineffective assistance of counsel. After resentencing, Jenners
appealed to this court, and we remanded the case after concluding that the district
court improperly relied on disputed facts in Jenners's presentence investigation report
(PSR). Following remand, the district court1 imposed a sentence of 96 months'
imprisonment. Jenners again appeals his sentence, arguing that the district court erred
in calculating his advisory sentence under the Guidelines and that the ultimate
sentence is unreasonable. We affirm.

                                   I. Background
                            A. The Underlying Offense
       Jenners and his co-conspirator defrauded banks by stealing bank account
information from various individuals, including the account holder's name, bank
account number, and the bank routing numbers. Then, Jenners would use this
information to create counterfeit checks and securities in false names. Using the
illegally obtained bank information, Jenners would also create false identification
documents, such as driver's licenses using various aliases, some of which displayed
Jenners's photograph. Jenners used the counterfeit checks and securities at banks and
businesses to obtain money, goods, and services.

       Police and the Federal Bureau of Investigation (FBI) were notified of the
scheme after a store clerk reported a suspicious transaction involving Jenners. On
November 21, 2003, officers conducted a search of Jenners's residence, which he
shared with co-defendant Jessica Egerdahl. Police seized a scanner, a digital camera,
a counterfeit North Dakota driver's license seal, lamination plastic, a Versa Check
2003 computer program box, two CDs (one with images of $100 and $20 bills and the
other with templates of various state driver's licenses), numerous receipts from various
businesses that indicated purchases with counterfeit or fraudulent checks, and various
pieces of paper bearing account and routing information. The police did not find a
computer despite the other evidence indicating its probable use.




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

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                     B. Sentencing and Procedural Background
        Jenners pleaded guilty to conspiracy to commit back fraud, counterfeiting, and
aiding and abetting. After accepting Jenners's plea, the district court sentenced Jenners
to a term of 108 months' imprisonment—this sentence was later vacated by the district
court on postconviction review because Jenners's counsel failed to file a direct appeal.
Upon resentencing, Jenners received the same sentence and appealed to this court. In
United States v. Jenners, 473 F.3d 894 (8th Cir. 2007), we vacated Jenners's sentence
and remanded the case for resentencing, concluding that the district court erred in
relying on disputed facts in Jenners's PSR.

      At resentencing following remand, the district court imposed a sentence of 96
months' imprisonment. In determining Jenners's advisory sentence, the district court
applied enhancements for sophisticated means and possession of device-making
equipment. The court calculated Jenners's pre-departure sentencing range to be 51 to
63 months and departed upward after finding that Jenners's criminal history was
understated.2 Alternatively, the court found that if no departure was warranted that a
variance would be appropriate.

       Before imposing the 96-month sentence, the district court questioned Jenners
to verify that he was aware that his plea agreement surrendered the majority of his
appellate rights, except for his right to challenge an upward departure from the
Guidelines. Jenners acknowledged waiving most his appellate rights.


      2
       Jenners has an extensive criminal history, including more than a dozen
convictions. Among the prior offenses listed in his PSR are various forgery and theft
charges, fraudulent use of a credit card, mail theft, stolen money orders (although he
was not charged for this offense), unauthorized use of personal identifying
information, conspiracy to commit theft, possession of drug paraphernalia, and the
unlawful reproduction of a driver's license. Additionally, Jenners was on probation
and was also facing four unspecified charges in Oregon while he was on trial for this
offense.

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                                  II. Discussion
      Jenners raises two arguments in this appeal. First, he challenges the application
of two enhancements under the Guidelines. Second, he argues that the district court's
decision to impose a sentence higher than his advisory range was unreasonable.

                         A. Calculation of Guidelines Sentence
       First, Jenners challenges the district court's calculations of his Guidelines
sentence, arguing that the court erred in enhancing his sentence pursuant to U.S.S.G.
§ 2B1.1(b)(8)(C) and (9)(A).We decline to reach the merits of Jenners's arguments on
this point because we conclude that Jenners waived his right to challenge the
calculation of his advisory Guidelines range. In his plea agreement, Jenners waived
"any right to appeal any and all motions, defenses, . . . and objections . . . to [the
district court's] entry of judgment against him and imposition of sentence, including
sentencing appeals under 18 U.S.C. § 3742."

         Absent a miscarriage of justice, an otherwise valid appeal waiver will foreclose
a defendant's argument that his Guidelines sentence was improperly calculated. United
States v. Mousseau, 517 F.3d 1044, 1047 (8th Cir. 2008). "The miscarriage of justice
exception to a waiver permits a defendant to challenge a sentence on the grounds that
'it is not authorized by the judgment of conviction or when it is greater or less than the
permissible statutory penalty for the crime[.]'" Id. (quoting United States v. Andis, 333
F.3d 886, 892 (8th Cir. 2003)). Jenners's plea agreement was knowingly and
voluntarily entered into, and he does not claim otherwise. Nor does he allege sufficient
facts to bring his case within the miscarriage of justice exception. Because Jenners
knowingly and voluntarily entered into the plea agreement, and his sentence would
not create a miscarriage of justice, we hold that Jenners's right to challenge the
calculation of his Guidelines sentence is waived.3

      3
       We decline to consider whether the Government waived its plea-agreement-
waiver argument by failing to assert it in Jenners's initial appeal because Jenners did
not address this issue either in his brief or at oral argument. See United States v.

                                           -4-
                            II. Departure and Variance
      Jenners also challenges the district court's decision to sentence Jenners to a term
in excess of his advisory Guidelines range. The district court justified this higher
sentence as either permissible under U.S.S.G. § 4A1.3 or as a variance under 18
U.S.C. § 3553(a). We agree with the district court and conclude that a variance under
§ 3553(a) was warranted.

        "[T]he [sentencing] court has a range of choice, and . . . its decision will not be
disturbed as long as it stays within that range and is not influenced by any mistake of
law." United States v. Rouillard, 474 F.3d 551, 556 (8th Cir. 2007) (quoting United
States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005)). "A court abuses its discretion
and imposes an unreasonable sentence when it 'fails to consider a relevant factor that
should have received significant weight; . . . gives significant weight to an improper
or irrelevant factor; or . . . considers only the appropriate factors but in weighing those
factors commits a clear error of judgment.'" Mousseau, 517 F.3d at 1048 (quoting
Rouillard, 474 F.3d at 556)).

      Post Booker,4 a district court may vary from the otherwise applicable Guidelines
range based on several factors including:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant; (2) the need for the sentence imposed
      . . . (A) to reflect the seriousness of the offense, to promote respect for
      the law, and to provide just punishment for the offense; (B) to afford


Walrath, 324 F.3d 966, 970 n.2 (8th Cir. 2003) (declining to address an argument that
was not raised before the district court or in the briefs or at oral argument); see also
Latorre v. United States, 193 F.3d 1035, 1037 n.1 (8th Cir. 1999) (stating that "[t]his
court, of course, does not normally address issues not raised in the district court nor
does it normally address issues not raised by a litigant on appeal").
      4
       United States v. Booker, 543 U.S. 220 (2005).

                                           -5-
      adequate deterrence to criminal conduct; (C) to protect the public from
      further crimes of the defendant; and (D) to provide the defendant with
      needed educational or vocational training, medical care, or other
      correctional treatment in the most effective manner; [and] (3) the kinds
      of sentences available . . . .

18 U.S.C. § 3553(a); see also United States v. Mosqueda-Estevez, 485 F.3d 1009,
1012 (8th Cir. 2007) (laying out the three-step procedure that district courts should
follow when sentencing a defendant).

       We conclude that the district court did not abuse its discretion in sentencing
Jenners to 96 months' imprisonment. Here, when examining Jenners's criminal history,
the district court was permitted to consider that under the plea agreement, 24 of the
25 counts in the indictment were dismissed. See United States v. Yahnke, 395 F.3d
823, 826 (8th Cir. 2005) (recognizing that the district court is not limited to only
convictions when deciding whether to depart; it may consider uncharged misconduct
provided that there is sufficient proof of the misconduct). Considering these 24
uncharged offenses along with Jenners's lengthy history of criminal conduct, we
conclude that the district court's decision to vary from the Guidelines based upon an
understated criminal history was supported by several § 3553(a) factors, including the
need for the sentence to promote respect for the law, provide adequate deterrence to
criminal conduct, and to protect the public from further crimes of the defendant.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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