United States v. Maharaj

United States Court of Appeals Fifth Circuit In the FILED United States Court of Appeals April 14, 2006 for the Fifth Circuit Charles R. Fulbruge III _______________ Clerk m 04-20990 Summary Calendar _______________ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS MICHAEL MOTILAL MAHARAJ, Defendant-Appellant, _________________________ Appeals from the United States District Court for the Southern District of Texas m 4:04-CR-79-1 _________________________ Before SMITH, GARZA, and PRADO, Michael Maharaj appeals his sentence im- Circuit Judges. posed pursuant to a plea agreement in which he pleaded guilty of conspiracy to defraud the JERRY E. SMITH, Circuit Judge:* government under 18 U.S.C. § 286 by making false, fictitious, or fraudulent claims for federal income tax refunds. Maharaj argues that the district court affected his substantial rights by * Pursuant to 5TH CIR. R. 47.5, the court has de- failing to notify him of its authority to order termined that this opinion should not be published restitution and by imposing a sentence above and is not precedent except under the limited cir- the maximum indicated at his plea hearing. cumstances set forth in 5TH CIR. R. 47.5.4. Because the district court did not commit plain enforcement of the waiver provision.1 In its error, we affirm. brief, the government states that it does not seek enforcement of the waiver. I. The plea agreement provided, inter alia, that Maharaj argues he is entitled to a reduction the maximum statutory penalty for violating in his required payment from $350,338.92 to § 286 is $250,000 and that any fine or restitu- $250,000.00, the maximum amount indicated tion would be due immediately. The agreement at his rearraignment hearing, because the court also contained an appeal waiver, which failed to advise him, in violation of Federal provided that Maharaj surrendered his right to Rule of Criminal Procedure 11(b)(1)(K), that appeal his sentence unless the court imposed he might be required to pay restitution.2 Be- (1) a sentence above the statutory maximum or cause Maharaj raises this issue for the first (2) an upward departure from the sentencing time on appeal, we review for plain error.3 guidelines that was not requested by the gov- ernment. Under plain error review, the defendant must show that the district court (1) commit- At rearraignment, the court advised Maharaj ted error (2) that was plain and (3) affected his that he was subject to a maximum of 10 years’ substantial rights. United States v. Olano, 507 imprisonment and/or a fine of $250,000, a max- U.S. 725, 732 (1993). Even if we find plain imum of 3 years’ supervised release, and a error, we retain discretion whether to correct special assessment of $100. The court did not it and generally will decline to do so unless it advise that it had authority to order him to pay “seriously affects the fairness, integrity or pub- restitution. The court read Maharaj the appeal lic reputation of judicial proceedings.”4 waiver. Maharaj represented that he had read and that he understood the terms of the plea agreement, and he signed the agreement on the record. 1 See United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006) (“In the absence of the govern- The pre-sentence report indicated that Ma- ment’s objection to [the defendant’s] appeal based haraj would be required, inter alia, to make on his appeal waiver, the waiver is not binding be- restitution. The court sentenced Maharaj to 78 cause the government has waived the issue.”). months’ imprisonment, 3 years’ supervised re- 2 lease, a fine of $125,000.00, restitution jointly See FED. R. CRIM. P. 11(b)(1)(K) (stating that and severally with his co-defendants of “the court must inform the defendant of, and $225,238.92, and a $100 special assessment. determine that the defendant understands . . . the court’s authority to order restitution”). II. 3 United States v. Vonn, 535 U.S. 55, 59 (2002) A defendant may waive his right to an appeal (holding that a defendant who fails to raise rule 11 in a written plea agreement if the waiver is error at trial “has the burden to satisfy the informed and voluntary. United States v. Bay- plain-error rule”). mon, 312 F.3d 725, 727 (5th Cir. 2002). A defendant is not bound by an appeal waiver 4 United States v. McIntosh, 280 F.3d 479, 482 where the government does not seek (5th Cir. 2002) (quoting Olano, 507 U.S. at 736 (internal quotations omitted)). 2 Because the district court violated rule 11 by terms, and he signed the agreement on the rec- not informing Maharaj of its authority to order ord. He also received notice of the possibility restitution, the court committed error that was of restitution in his pre-sentence report.6 plain. See Olano, 507 U.S. at 732. Maharaj relies on United States v. Glinsey, 209 F.3d 386 Second, Maharaj was held jointly and sev- (5th Cir. 2000), and United States v. Powell, erally liable with his co-defendants for the full 354 F.3d 362 (5th Cir. 2003), to claim that the amount of restitution, a fact that decreases the error affected substantial rights because the to- likelihood that he would be held personally tal amount of liability imposed exceeded the responsible for payment in excess of $250,- amount that the court advised him would fol- 000.00. See id. at 392 (implying Glinsey was low as a result of his guilty plea. solely responsible for restitution). Third, Glin- sey merely stands for the proposition that a We have stated, when conducting harmless judgment equal to the amount announced at error review, that substantial rights are violated the plea colloquy cannot, by definition, affect under rule 11 if “the defendant’s knowledge a defendant’s substantial rights, because the and comprehension of the full and correct infor- defendant received fair notice of that amount mation would have been likely to affect his under rule 11. See id. at 395. It does not fol- willingness to plead guilty.” United States v. low that a judgment above the notified amount Johnson, 1 F.3d 296, 298 (5th Cir. 1993) (en necessarily affects substantial rights. Glinsey’s banc). In Glinsey, 209 F.3d at 396, in circum- sentence was substantially further above the stances nearly identical to these, we adjusted notified amount than is Maharaj’s. See id. at the sentence by the difference between the 395 (noting the additional imposition of amount the court imposed and the amount it $266,317.06). Fourth, and most importantly warned the defendant he could receive. We in the context of plain error review, because stated that the defendant “is not prejudiced so Maharaj did not object to the rule 11 violation long as his liability does not exceed the maxi- at trial, we are not persuaded that he would mum amount that the court informed him could not have pleaded guilty but for the error. be imposed as a fine.” Id. at 395.5 Finally, even if Maharaj had established Even assuming that Glinsey controls as to plain error, this case does not present facts what affects substantial rights in the context of that “seriously affect[] the fairness, integrity or plain-error review, we would not find plain er- public reputation of judicial proceedings.” ror here. First, Maharaj’s written plea agree- McIntosh, 280 F.3d at 482. In particular, the ment, unlike Glinsey’s, specificallymentions the fact that Maharaj received notice of the possi- possibility of restitution. See id. at 394. Ma- haraj indicated he read and understood the 6 Maharaj notes that in Powell the defendant had also received notice of restitution in his plea 5 See also Powell, 354 F.3d at 370 (stating that agreement and pre-sentence report. See id. at 367. failure to disclose the possibility of restitution But Powell does not control, because the court had “could be harmful error when the quantum of that no occasion to modify the judgment, given that the restitution exceeds the liability amount used by the amount ultimately imposed was less than the court in notifying the defendant as to the conse- amount announced to the defendant during the plea quences of his guilty plea.”). colloquy. See id. at 369. 3 bility of restitution in his pre-sentence report and written plea agreement convinces us that the district court afforded him adequate due process. AFFIRMED. 4