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United States v. Feichtinger

February 4, 1997

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

FRANK FEICHTINGER,

DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Illinois.

No. 94 CR 30005 William L. Beatty, Judge.

Before POSNER, Chief Judge, and ESCHBACH and EVANS, Circuit Judges.

EVANS, Circuit Judge.

ARGUED DECEMBER 5, 1996

DECIDED FEBRUARY 4, 1997

Frank Feichtinger has a common complaint: he thinks his sentence is too long. His problem is, however, that before he can convince us to listen to his beef, he must hurdle his plea agreement, in which he waived his right to appeal.

Feichtinger and another man concocted a plan to break into and rob two banks in Belleville and Collinsville, Illinois. They intended to use liquid helium and an oxyacetylene torch to crack open the bank vaults. To carry out their plan they stole military equipment from an Illinois Army Reserve Center. Among the items stolen were night vision goggles, hand-held radios, bolt cutters, 26 chemical protective masks, compasses, watches, sleeping bags, Kevlar helmets, a practice claymore mine, and -- astonishingly -- a two-and-one-half ton cargo truck. One vehicle apparently not being enough, they obtained another Army truck from the Jefferson Barracks in Missouri. They drove this truck to Illinois. In all, the military equipment they snatched was worth almost a half million dollars.

Not surprisingly, on January 31, 1994, they were charged in federal court with theft of military equipment and concealing stolen military equipment. On May 3, 1994, a five-count superseding indictment was filed against Feichtinger. It repeated the original charges and added two more -- conspiracy to commit bank robbery and the interstate transportation of stolen government property. Feichtinger's trial was scheduled to begin on October 11, 1994.

To understate, Feichtinger failed to appear for trial. What he did instead was to flee in dramatic fashion. He faked his own suicide by leaving his abandoned car and a suicide note on a Mississippi River bridge. The suicide note was a doozey. It was handwritten, 15 pages long, quoted Mark Twain, lamented "My battle is over now I must expire," and repeated "[I'm] dead as a doornail" 28 times.

But surprise surprise. Unlike Marley's ghost, Feichtinger was not "dead as a doornail" despite his repetitious assertions that he was. Feichtinger, it turned out, was alive and kicking in Arizona, where he was nabbed 10 months later in August of 1995. Upon his arrival back in Illinois, a second superseding indictment was returned, with a sixth count for failure to appear for trial added to the old charges.

On February 29, 1996, Feichtinger entered -- what a temptation to say leaped (though that would not be accurate) -- into a plea agreement, in which he waived his right to appeal. On May 21, 1996, Judge William L. Beatty sentenced him to 37 months imprisonment on counts 1 through 5 and a 6-month consecutive term on the failure-to-appear count, giving him a grand total sentence of 43 months.

Feichtinger filed an appeal, alleging that the sentence on count 6 was an improper application of sec. 2J1.6 of the United States Sentencing Guidelines. In response, the government called our attention to the waiver of the right to appeal, set out in the plea agreement. Feichtinger replied that the waiver does not preclude his appeal because the government, in fact, breached the plea agreement and because a waiver does not rule out an appeal based on a incorrect application of the guidelines.

His second argument need not detain us long. If Feichtinger is right, what, we wonder, does a waiver waive? Most sentencing appeals involve what are alleged to be incorrect applications of the guidelines. We have, in fact, upheld waivers even in situations in which the court has departed upward from the guidelines. United States v. Wenger, 58 F.3d 280 (7th Cir.), cert. denied, 116 S. Ct. 349 (1995).

In support of his position, Feichtinger relies on United States v. Schmidt, 47 F.3d 188 (7th Cir. 1995), for the proposition that a waiver of a right to appeal is subject to exceptions. True, but in Schmidt, even though the government did not raise the waiver issue, we relied on a waiver of appeal to dismiss an appeal of a sentence alleged to involve an improper enhancement under the guidelines. We noted that the right to appeal is a statutory right, and ...


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