Mayra Dominguez-Cortez v. Michael B. Mukasey

1The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3241
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Jeannie Dmitruk, also known as *
Jeannie Rotan, also known as * [UNPUBLISHED]
Jeannie Baxter, *
*
Appellant. *
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Submitted: October 15, 2009
Filed: October 20, 2009
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Before WOLLMAN, RILEY and SMITH, Circuit Judges.
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PER CURIAM.
Jeannie Dmitruk pleaded guilty to identity theft, in violation of 18 U.S.C.
§ 1028(a)(7). The district court1 determined that Dmitruk’s advisory Guidelines range
was 15 to 21 months and denied Dmitruk’s request for a downward departure on the
basis of her medical problems. The district court sentenced Dmitruk to 20 months in
prison. On appeal, Dmitruk argues that her guilty plea was involuntary, because she

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was under the influence of methadone during the plea hearing; the district court failed
to investigate her ability to understand the plea proceedings adequately; and the
district court failed to consider her request for a sentence variance on the basis of her
and her family’s extensive medical problems. The government moved to dismiss
Dmitruk’s appeal as waived by the plea agreement. We consolidated this motion with
Dmitruk’s appeal. We deny the government’s motion and affirm the district court’s
judgment.
The argument that a guilty plea was not knowing, intelligent, and voluntary is
not cognizable on appeal unless it was raised in the district court. United States v.
Villareal-Amarillas, 454 F.3d 925, 932 (8th Cir. 2006); see also United States v.
Murphy, 899 F.2d 714, 716 (8th Cir. 1990). Dmitruk did not challenge her guilty
plea’s validity or attempt to withdraw her plea in the district court. Thus, she cannot
challenge the validity of her plea on appeal.
Dmitruk’s argument that the district court failed to consider her variance
request is without merit. Dmitruk’s brief does not make the precise basis of her
argument clear. Dmitruk may have intended to argue that the district court committed
procedural error under Gall by failing to consider her health-based arguments as part
of its inquiry into one of the 18 U.S.C. § 3553(a) factors (e.g., 18 U.S.C.
§ 3553(a)(2)(D)). See Gall v. United States, 128 S.Ct. 586, 597 (2007). Perhaps
Dmitruk intended to argue that the district court abused its discretion by imposing a
sentence without “consider[ing] a relevant factor that should have received significant
weight.” See United States v. Haack, 403 F.3d 997 (8th Cir.), cert. denied, 546 U.S.
913 (2005).
In any case, the record refutes Dmitruk’s argument. The district court heard
testimony on the subject of Dmitruk’s medical problems and her unfortunate family
situation from Dmitruk herself, Dmitruk’s friends and neighbors, and a licensed
medical professional. Furthermore, the district court found that Dmitruk’s problems

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2Dmitruk discussed both departures and variances at sentencing, but ultimately
requested a variance. Although the district court used the term “departure” in its
finding, we conclude that the district court considered and rejected both a departure
and a variance.
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were “regrettable,” but determined that Dmitruk’s “mental health situation . . . [did
not] justify a departure from the Guidelines.” (Sent. Tr. 65.) The district court
allowed Dmitruk to surrender herself into custody, rather than ordering that she be
taken into custody at sentencing, because of her medical problems. Having carefully
considered Dmitruk’s argument,2 the district court did not commit procedural error
or abuse its discretion when imposing Dmitruk’s sentence. It does not appear that
Dmitruk challenges the substantive reasonableness of her sentence. Nor, given the
presumption of reasonableness we afford within-guidelines sentences, would such an
argument prevail. See United States v. Garcia, 512 F.3d 1004 (8th Cir. 2008). Since
we reject Dmitruk’s argument on the merits, we need not reach the question of
whether it was waived in the plea agreement.
The judgment is affirmed.
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