United States v. Hemler

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
March 7, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-50232
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAMMY HEMLER, also known as Tammy Rich,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:04-CR-175-ALL
--------------------
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Tammy Hemler appeals the restitution order imposed by the
district court following her guilty-plea conviction for
misprision of a felony, a violation of 18 U.S.C. § 4. The
district court sentenced Hemler to five years of probation, six
months of home detention, $5,000,000 in restitution, and a $100
special assessment.
Hemler contends that (1) 18 U.S.C. § 3663A does not
authorize an order of restitution for offenses such as misprision

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No. 05-50232
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of a felony; (2) the order of restitution should be vacated
pursuant to United States v. Booker, 543 U.S. 220 (2005); and
(3) the district court abused its discretion in ordering
restitution in the amount of $5,000,000.
Hemler concedes that her plea agreement contained an appeal
waiver; however, she asserts that the waiver does not bar her
appeal. Hemler asserts that her waiver of appeal was not knowing
and voluntary because the scope of the restitution provision in
her plea agreement allegedly is ambiguous. She also asserts that
the terms of the waiver provision do not encompass an order of
restitution pursuant to § 3663A. Finally, she asserts that a
waiver of appeal does not bar an appeal of an illegal sentence.
We review de novo whether a waiver provision bars an appeal.
United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). We
determine whether the waiver was knowing and voluntary and
whether the waiver applies to the circumstances at issue. United
States v. Bond, 414 F.3d 542, 2005 WL 1459641 at *2 (5th Cir.
June 21, 2005).
The record reflects that Hemler knowingly and voluntarily
waived her right to appeal her sentence, except for a sentence
that was the result of an upward departure from the Sentencing
Guidelines. See United States v. Cortez, 413 F.3d 502, 503 (5th
Cir. 2005); United States v. McKinney, 406 F.3d 744, 746 (5th
Cir. 2005); FED. R. CRIM. P. 11(b)(1)(N). Because Hemler’s
sentence did not constitute an upward departure from the

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Guidelines, we DISMISS Hemler’s appeal as barred by the waiver
contained in the plea agreement.
APPEAL DISMISSED.

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