FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 25, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 20-4022
v. (D.C. No. 4:18-CR-00036-DN-1)
(D. Utah)
SHELTON WILLIAMS,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, EBEL, and EID, Circuit Judges.
_________________________________
Defendant-Appellant Shelton Williams pled guilty to four counts of pharmacy
burglary. At sentencing, the district court ordered Williams to pay restitution for an
additional six uncharged pharmacy burglaries. Williams failed to object at the time,
but now argues that the district court plainly erred in imposing restitution for
uncharged burglaries for which he now alleges there was insufficient evidence in the
record to support. The government responds that Williams’ appeal is barred by the
appeal waiver contained in his plea agreement. We agree. Exercising jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we dismiss this appeal.
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. Background
Williams, a member of the Insane Crips gang, was part of a crew of Insane
Crips burglarizing pharmacies in California, Nevada, and Utah in order to steal
opioids. Following an FBI investigation, Williams was arrested and charged with
numerous pharmacy burglaries.
Eventually, Williams accepted a plea agreement in which he pled guilty to four
counts of pharmacy burglary and one count of conspiracy to distribute a controlled
substance. The plea agreement contained an appeal waiver, as well as an agreement
that Williams would pay mandatory restitution, plus restitution to “victims of
unpleaded or uncharged relevant conduct pursuant to 18 U.S.C. § 3663A(a)(3).”
(R., vol. I, at 48–49.) The plea agreement did not specify any such victims or any
such relevant conduct.
Following Williams’ plea, the U.S Probation Office prepared a Presentence
Report (PSR) to aid the district court in sentencing. The PSR stated that Williams
had participated in post-arrest interviews with the FBI and admitted to committing an
additional six uncharged burglaries, and that in his plea agreement he had agreed that
relevant conduct, including uncharged conduct, would be included in the PSR and
that the court would order restitution. Accordingly, the PSR included the six
uncharged burglaries in its calculation of restitution. Williams did not object to the
PSR.
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At the sentencing hearing, the parties did not discuss restitution. Ultimately,
the district court imposed the full restitution amount calculated in the PSR. Williams
did not object.
II. Discussion
On appeal, Williams argues that the district court plainly erred in ordering
restitution for the six uncharged pharmacy burglaries “without support in the record”
that Williams committed those burglaries. (Aplt. Br. 14.) In response, the
government maintains that Williams’ argument is precluded by his plea-agreement
appeal waiver. Accordingly, before we may consider the merits of Williams’
argument, we must determine whether the appeal waiver bars such review. We
conclude that it does.
Waivers of the right to appeal are generally enforceable. United States v.
Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). To determine
whether an appeal waiver precludes review of an appeal, this Court employs a three-
prong inquiry: (1) whether the disputed appeal falls within the scope of the appeal
waiver; (2) whether the defendant knowingly and voluntarily waived his appellate
rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.
Id. at 1325. Whether an appeal waiver is enforceable is a question of law this Court
considers de novo. United States v. Lonjose, 663 F.3d 1292, 1297 (10th Cir. 2011).
Here, the dispute turns on the first prong—whether Williams’ restitution
challenge falls within the scope of his appeal waiver. That waiver provides:
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I knowingly, voluntarily, and expressly waive my right to
appeal any sentence imposed upon me, except that I do not
waive the right to appeal as set forth in 18 U.S.C.
§ 3742(c)(1), which states that I may not file a notice of
appeal unless the sentence imposed is greater than the
sentence set forth in this agreement.
(R., vol. I, at 48.) The waiver later notes that the term “sentence” includes “any
orders of restitution.” (Id. at 49.)
The parties apparently agree that this waiver would preclude Williams’ appeal
unless the appeal falls within the narrow categories of appeals governed by United
States v. Gordon, 480 F.3d 1205 (10th Cir. 2007).1 In Gordon, this Court held that an
appeal waiver does not waive the right to challenge an “unlawful restitution order.”
Id. at 1208. In that case, the defendant pled guilty to a single count of credit card
fraud, and the district court ordered restitution that included amounts for other,
uncharged instances of credit card fraud by the defendant. Id. at 1207. But unlike
Williams here, the Gordon defendant had not agreed to pay restitution for uncharged
conduct. Id. at 1211. Accordingly, despite having agreed to an appeal waiver, the
1
Analysis of the waiver provision might be complicated by the fact that the
government admittedly miswrote it, mistakenly including Rule 11(c)(1)(C) appeal
waiver language instead of the appeal waiver language for a regular Rule 11 plea.
I.e., instead of precluding appeals other than those imposing a sentence greater than
that set out in the plea agreement, the waiver should have precluded appeals “with
exceptions if the court imposed a sentence above the maximum penalty provided in
the statute of conviction or above the high-end of the guideline range as determined
by the district court at sentencing.” (Aple. Br. 27 n.6.) But we need not consider the
impact of the mistakenly included language because Williams agrees with the
government that “the difference is immaterial for present purposes.” (Reply Br. 14
n.5.) Both parties accept that the appeal-waiver issue turns solely on whether Gordon
applies.
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Gordon defendant appealed the restitution order, arguing that the district court lacked
the statutory authority to order restitution for the uncharged conduct. Id. at 1207.
The Gordon court held that the defendant’s appeal was not precluded by her
appeal waiver, reading the waiver not to waive the right to appeal any sentence
beyond that which could be lawfully imposed. Id. at 1209. Accordingly, the court
concluded that the waiver did not waive the right to appeal an unlawful restitution
order. Id.
Gordon might be read to suggest a broad exception to an appeal waiver,
allowing a defendant to evade the waiver whenever he challenges a restitution order
as unlawful. In United States v. Cooper, 498 F.3d 1156 (10th Cir. 2007), however,
this Court explained that Gordon created an “extremely narrow” exception that
“applies only in the case where there is no factual dispute as to the amount of
restitution linked to an offense and the legality of the district court’s restitution award
can therefore be reviewed solely as a question of law.” Id. at 1160.
In Cooper, the defendant attempted to challenge a restitution order, despite an
appeal waiver, on the basis that restitution to a particular individual was improper
because that individual had a claim to a mortgage on the defendant’s house and could
recover the money through foreclosure. Id. The Cooper court characterized that as a
factual challenge “arguing that the government failed to produce sufficient evidence
to prove that [the other individual] was a victim of [the defendant’s] related
conduct.” Id. The court held that this sort of sufficiency-of-the-evidence challenge,
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“necessarily based on disputed facts,” did not fall within the Gordon exception and
was thus “clearly barred” by a general appeal waiver. Id.
Here, the dispute over whether Williams’ appeal falls within the scope of his
appeal waiver comes down to whether the appeal is governed by Gordon or by
Cooper. That, in turn, depends on whether the appeal presents solely a question of
law versus a factual challenge based on the sufficiency of the evidence and
necessarily dependent upon disputed facts. If the former, Gordon says it is
reviewable despite the waiver; if the latter, Cooper precludes review.
Naturally, the parties do not see eye-to-eye on this issue. The government
argues that Williams’ appeal presents a “factual dispute concerning the district
court’s calculation of the restitution award, arguing that the United States failed to
produce sufficient evidence to show that Williams should be held accountable for the
losses in the six uncharged burglaries.” (Aple. Br. 25.) Williams responds that his
appeal solely presents a question of law: whether the district court erred by imposing
a restitution order after finding there was no record support for it. Williams further
notes that he does not dispute the amount of loss associated with any of the pharmacy
burglaries, charged or uncharged.
Focusing on Williams’ Opening Brief, we conclude that his appeal plainly
presents a factual challenge based on the sufficiency of the evidence. To start, the
argument section in his brief is entitled, “It is Plain Error to Impose Restitution for an
Amount for which there is no Record Basis.” (Aplt. Br. 8.) In making that argument,
Williams first notes that the government bears the burden of establishing the
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propriety of restitution by a preponderance of the evidence. Williams then reviews
the evidence in the record and argues about its import, asserting that the parties and
the district court all had difficulty pinpointing in the record any actual admission by
Williams of his involvement regarding the uncharged burglaries.
That analysis leads Williams to assert plain error in that “[t]he district court
ignored the express language of [18 U.S.C. § 3664(e)] in imposing restitution in the
absence of evidence that the losses suffered in the six uncharged burglaries were
‘a result of the offense’ Mr. Williams committed.” (Id. at 13 (emphasis added).)
Williams goes on to argue that in addition to the FBI interview transcripts not
providing sufficient evidence, the court could not have inferred that Williams
committed the uncharged burglaries based on his admission to the charged ones.
Williams concludes that “[t]he district court’s restitution order with regard to the
uncharged burglaries is without support in the record,” (id. at 14), and that because
“the record did not permit the conclusion that the losses incurred in the uncharged
burglaries were attributable to Mr. Williams,” the district court erred by “issu[ing] an
order unsupported by the evidence,” (id. at 17 (quoting United States v. Fair,
699 F.3d 508, 516 (D.C. Cir. 2012))).
That all can only be read as a factual challenge to the sufficiency of the
evidence to support the district court’s restitution order. As a sufficiency-of-the-
evidence challenge, necessarily based on disputed facts, it is governed by Cooper, not
Gordon, and Williams’ appeal waiver bars review of his appeal.
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In his Reply Brief, in response to the government’s argument that Cooper
precludes appeal, Williams recasts his argument as a legal one. To do so, he asserts
that he does not challenge the sufficiency of the evidence but instead argues that the
district court erred as a matter of law by imposing a restitution order after finding
there was no record support for it. This is a not-so-subtle shift from what Williams
argued in his Opening Brief. There, Williams indeed noted that the district court had
commented on the difficulty in finding record support connecting Williams to the
uncharged burglaries, but he offered that statement as support for his sufficiency-of-
the-evidence challenge, not as the basis for a purely legal challenge to the restitution
order. Nowhere in the Opening Brief does Williams argue that the district court
erred as a matter of law by imposing restitution for uncharged conduct after allegedly
finding insufficient evidence to prove that conduct.2
Instead, Williams waited to raise his new argument until his Reply Brief, and
he cannot morph the factual challenge in his Opening Brief into a legal challenge in
his Reply Brief in order to evade application of his appeal waiver. For these reasons,
we conclude that Williams’ appeal is a sufficiency-of-the-evidence challenge
governed by Cooper, thus falling within the scope of his appeal waiver. See Cooper,
498 F.3d at 1160 (“A challenge to the amount of a restitution award based on
2
We also note that the district court never made such a finding. Williams
takes the district court’s admitted difficulty in interpreting FBI interview transcripts
and mischaracterizes it as an express finding that Williams did not admit to the
uncharged burglaries. The court made no such a finding, but instead only questioned
the parties about where to find record support. Williams cannot point to anything
more definitive in the record to support his assertion of a district court “finding.”
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sufficiency of the evidence is necessarily based on disputed facts and thus does not
fall within the Gordon exception. Accordingly, it is clearly barred by a general
waiver of the right to appeal a restitution award.”)
In addition, the government argues that the waiver was knowing and voluntary,
and enforcing the waiver would not result in a miscarriage of justice. Yet the Court
need not reach these issues, because Williams has waived any such consideration by
inadequately presenting any argument under these prongs.
Because we conclude that Williams’ appeal falls within the scope of the appeal
waiver and that he has waived any other argument against enforcement of the waiver,
the Court holds that his appeal is precluded by the waiver.3 Accordingly, we dismiss
this appeal.4
3
The government additionally argued that Williams had waived any objection
to the district court’s restitution award by inviting any error. Because we resolve this
appeal based on the appeal waiver, we need not address the government’s invited-
error argument.
4
We further note that even if Williams’ appeal was not precluded by his plea
agreement appeal waiver, it would be waived due to Williams’ failure to object to the
PSR’s inclusion of the uncharged burglaries. The sufficiency of the evidence to
prove the uncharged burglaries is a factual dispute, and “failure to assert a factual
dispute at sentencing waives the challenge because it prevented . . . the district court
from resolving the fact issue.” United States v. Wright, 848 F.3d 1274, 1285 (10th
Cir. 2017) (omission in original) (quoting United States v. Zhou, 717 F.3d 1139,
1154 (10th Cir. 2013)). Had Williams contested the restitution order at sentencing,
the district court could have asked the government for more support to establish that
Williams had committed the uncharged burglaries. “By not protesting the . . .
restitution amounts in the district court, [Williams] has waived them on appeal.” Id.
But, once again, we need not address this in detail because of Williams’ overall
appeal waiver.
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III. Conclusion
For the reasons provided above, we DISMISS Williams’ appeal as barred by
the appeal waiver contained in his plea agreement.
Entered for the Court
David M. Ebel
Circuit Judge
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