[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 6, 2007
No. 06-14684 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00017-CR-HL-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN L. HARRELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(June 6, 2007)
Before BIRCH, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Martin Ladon Harrell appeals his sentence of restitution in the amount of
$319,145.10, imposed following convictions for conspiracy to interfere with
interstate commerce by threats, intimidation, and extortion, conspiracy to commit
arson and mail fraud, arson, witness tampering, and misleading statements under
18 U.S.C. §§ 371, 844(i), 1341, 1512(b)(1), 1512(b)(3), and 1951(a)(1). Because it
is not clear from the record that Harrell understood the full significance of the
appeal waiver in his plea agreement, we will not enforce the waiver against him.
Nevertheless, because the Mandatory Victim and Restitution Act of 1996, 18
U.S.C. § 3663A (“MVRA”), required the district court to order restitution in this
case, it did not commit plain error by doing so. Accordingly, we AFFIRM the
district court’s order of restitution in this case.
I. BACKGROUND
In 2005, Harrell, with Dexter Harrison and Charles L. Harrell (“Charles”),
was indicted in a 13-count superceding indictment. In the indictment, Harrell and
Charles were jointly charged with conspiring to interfere with interstate commerce
by threats, intimidation, and extortion, in violation of 18 U.S.C. § 1951(a)(1)
(Count 1), and interfering with interstate commerce by threats, intimidation, and
extortion, in violation of 18 U.S.C. § 1951(a)(1) (Count 2). Harrell was separately
charged with interstate travel in aid of racketeering, in violation of 18 U.S.C.
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§ 1952(a) (Count 3). Harrell and Harrison were jointly charged with:
(1) conspiring to commit arson and mail fraud, in violation of 18 U.S.C. §§ 371,
844(I), and 1341 (Count 5); (2) mail fraud, in violation of 18 U.S.C. § 1341 (Count
6); and (3) arson, in violation of 18 U.S.C. § 844(i), and 2 (Count 7). Harrell was
also separately charged in the indictment with: (1) three counts of witness
tampering, in violation of 18 U.S.C. § 1512(b)(1) (Counts 8, 9, and 10); (2) an
additional count of interference with interstate commerce by threats, intimidation,
and extortion, in violation of 18 U.S.C. § 1951(a) (Count 11); and (3) making
misleading statements, in violation of 18 U.S.C. § 1512(b)(3) (Count 12).
Finally, the indictment also separately charged Charles with witness tampering, in
violation of 18 U.S.C. § 1512(b)(3) (Count 4), and charged Harrison with making
misleading statements, in violation of 18 U.S.C. § 1512(b)(3) (Count 13).
Thereafter, the court severed the counts in the indictment into three separate
trials according to their relevance to each other. Specifically, the court ordered that
Counts 4-10 and 12-13 would be tried first, and that later, separate trials would be
held on Counts 1-3, and on Count 11.
At the first trial, Harrell was convicted under Counts 5, 7, 10, and 12, but
was acquitted of Counts 6, 8, and 9. Subsequently, before any additional trial was
held, Harrell pled guilty to Count 1 in exchange for the dismissal of Counts 2, 3,
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and 11. In his plea agreement, Harrell “knowingly and voluntarily” agreed to
waive his right to appeal his convictions or sentences on any of the counts of
conviction from the trial or following his guilty plea, unless his sentence exceeded
the guideline range. R3-318 at 4. The district court entered written findings
following a change of plea hearing, finding, among other things, that Harrell had
knowingly and willingly waived “the right to appeal any verdict of guilty and to be
represented on appeal by counsel.” R3-320 at unnumbered 2. A transcript from
the change of plea hearing is not included in the record.
According to the Presentence Investigation Report (“PSI”), in 2000, Harrell
entered into a contract with Bill Chandler to raise cattle. At the conclusion of the
contract, Harrell believed Chandler was not paying him what he was due and
threatened him with bodily injury. Thereafter, Harrell and his father, Charles,
conspired with two other men who lured Chandler from his home and then
assaulted him. Chandler fought the men off, and one of the men was eventually
apprehended.
In 2001, Harrell entered into a conspiracy with Harrison to burn down a
motel owned by Harrison. On 7 January 2002, Harrell sprayed a mixture of diesel
fuel and gasolene in five interior areas of the motel, including near a natural gas
line, and left containers of fuel throughout these areas. At that time there were 16
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guests in the motel and 1 employee. Although all of the guests exited the motel,
one of them suffered smoke inhalation that required treatment. The PSI also noted
misrepresentations made by Harrell during the investigation of the arson, as well as
Harrell’s attempt to get his wife to stop assisting the authorities. Following the
arson, Harrison’s insurer paid him $319,145 for the damage to the motel.
To calculate Harrell’s offense level, the PSI divided the counts of conviction
into three groups. In its calculation, the PSI added enhancements for: (1) Harrell’s
role as a leader under Count 1; and (2) obstruction of justice under all three groups.
After applying the multiple count adjustment, the PSI assigned Harrell a total
offense level of 34. Although the PSI listed some criminal conduct and arrests, it
listed no criminal convictions and assigned Harrell zero criminal history points and
a criminal history category of I. With a total offense level of 34 and a criminal
history category of I, the PSI calculated a guideline sentencing range of 151 to 188
months.
The PSI advised that the Court was required to order restitution pursuant to
18 U.S.C. § 3663(a). In this regard, the PSI noted that the injured motel guest had
not submitted any statement of financial loss and reiterated that the insurer’s total
loss was $319,145.10. The PSI also noted that the advisory guidelines required
that restitution be paid, under U.S.S.G. § 5E1.1.
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The government filed numerous objections to the PSI, including objecting to
the restitution amount. Specifically, the government argued that Harrell should
also have to pay the attorney’s fees stemming from a civil suit filed by Harrison
against the insurer following the fire. The probation officer responded, arguing
that there was no evidence that Harrell had participated in Harrison’s attempt to get
more money from the insurer for the repairs to the motel, and that Harrison’s
actions in this regard were unrelated to Harrell’s actions.
Harrell objected to statements made in the PSI regarding conduct not
included in the offense’s relevant conduct, and argued that he should have received
an adjustment for acceptance of responsibility. In response, the probation officer
argued that the adjustment was not appropriate because Harrell had been convicted
on several counts and had been given an adjustment for obstruction of justice.
At the sentencing hearing, the court heard from witnesses called by both the
government and the defense. Thereafter, the government argued its objections to
the PSI, concluding by noting that the question of the amount of restitution was
still open. In response, Harrell’s counsel noted that Harrell had been acquitted of
mail fraud and argued that the civil suit against the insurer had been initiated solely
by Harrison and Harrell did not benefit from it. In conclusion, Harrell’s counsel
asked the court to adopt the recommendations in the PSI, particularly regarding the
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issue of restitution and upward departure. The government then argued that
Harrell should be held responsible for some of the attorney’s fees because he was
deposed in the civil suit and could have told the insurer that the suit was a sham.
After Harrell addressed it in allocution, the court overruled the government’s
objections and found that the guideline range was 151-188 months of
imprisonment. However, the court then sentenced Harrell to a total sentence of
240 months of imprisonment. The court stated, among other things, that it had
determined that a 240-month sentence was appropriate and complied with the 18
U.S.C. § 3553(a) sentencing factors, specifically listing several of those factors.
The court also ordered Harrell to pay $319,145.10 in restitution. The court also
noted that Harrell had “knowingly and voluntarily waived [his] statutory right to
appeal with certain exceptions specified in [his] plea agreement, even as to the
counts for which [he was] sentenced at the jury trial,” but still cautioned him that if
he did mean to file an appeal he had to do so within 10 days. R6-56. Finally, after
consulting with the probation officer, the court, among other things, expressly
overruled Harrell’s request for an acceptance of responsibility adjustment, and
clarified that it had imposed a variance in his sentence, not a departure.
Thereafter, the court entered a written judgment in accordance with its oral
sentence, and dismissing Counts 2, 3, 6, 8, 9, and 11. Harrell timely appealed.
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II. DISCUSSION
A. Whether Harrell waived his right to appeal his sentence
Although Harrell does not address this issue, the government briefly argues
that because Harrell executed a plea agreement containing an appeal waiver as to
all of the counts of conviction, and because the waiver “was explained to him on
the record by the district court during his plea colloquy,” he has waived his right to
appeal. Appellee’s Br. at 8.
We review the waiver of the right to appeal de novo. United States
v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997) (citation omitted).
Appeal waivers are valid if they are made knowingly and voluntarily. United
States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993). For an appeal waiver to
be enforced, the government must show that either: (1) the district court
specifically questioned the defendant concerning the appeal waiver during the plea
hearing, or (2) it is manifestly clear from the record that the defendant otherwise
understood the full significance of the waiver. Id. at 1351.
Here, the government has failed to satisfy the first prong of the test in
Bushert because there is no transcript of the change of plea hearing in the record.
The government does not address the second prong in its brief, and the record
shows only that: (1) the plea agreement contains a waiver and states that Harrell
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understands that waiver; (2) the probation officer believed it had been entered
knowingly and voluntarily; and (3) the court also believed the waiver was knowing
and voluntary. Outside the plea agreement, the record does not include any
statement by the defendant that clarifies whether he understood the waiver’s full
significance. We have held that the text of the plea agreement itself is not
sufficient to show that the waiver was knowing and voluntary. Id. at 1352.
Accordingly, because “a thorough review of the record [does not] yield any
indication that [Harrell] otherwise understood the full significance of his sentence
appeal waiver,” we will not enforce the waiver. See id. at 1353.
B. Whether the district court plainly erred in sentencing Harrell to pay
restitution
On appeal, Harrell argues that the district court erred in holding him liable
for the “restitution regarding the insurance proceeds” the insurer paid to Harrison,
as he was acquitted of the mail fraud charge and did not receive any of the
proceeds of the fraud.1 Appellant’s Br. at 14. He argues that this conclusion is
supported by the fact that only Harrison was sentenced to repay the attorney’s fees
that resulted from the civil litigation regarding the repairs.
1
He also argues that the government has conceded this error. As the government argues
in its brief in response, however, this appears to be based on a misinterpretation of the
government’s arguments at sentencing.
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Because Harrell did not object to the restitution sentence in any way before
the district court, we will only review this issue for plain error. See United States
v. Hasson, 333 F.3d 1264, 1276 (11th Cir. 2003) (citations omitted). Accordingly,
Harrell must establish that: (1) an error occurred; (2) it is plain; (3) it affects his
substantial rights; and (4) it seriously affected the fairness and integrity of the
proceedings. See id. (citation omitted).
Under the MVRA, where a defendant is convicted of, among other things, a
felony offense against property, the district court is required to “order, in addition
to . . . any other penalty authorized by law, that the defendant make restitution to
the victim of the offense.” 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii). The MVRA
specifies that, in the case of an offense against property where no part of the
property can be returned, the order of restitution must require the defendant to pay
an amount equal to “the value of the property on the date of the damage, loss, or
destruction.” 18 U.S.C. § 3663A(b)(1)(B)(i)(II).
In this case, Harrell was convicted of conspiring to commit arson and of
committing arson. The hotel that burned was not considered the victim in the PSI
because the arson was committed with the intent of defrauding the building’s
insurer. Thus, the restitution amount identified in the PSI was the amount paid out
by the insurer. This was in compliance with the MVRA and was not error, let
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alone plain error. See Hasson, 333 F.3d at 1276 (citation omitted) (stating that “a
sentencing court does not commit plain error by relying on factual findings
contained in the [PSI] regarding a defendant’s ability to pay restitution”). The
attorney’s fees figure that was ordered paid by Harrison is irrelevant to Harrell as
he was not implicated in the suit against the insurer. Thus, the district court did not
err in ordering restitution.
III. CONCLUSION
The government’s insistence that Harrell’s appeal be dismissed because of a
valid appeal waiver is not adequately supported by the record. On consideration of
the merits of Harrell’s appeal wherein he challenges the sentencing court’s order of
restitution, we find no reversible error. Accordingly, the sentence is AFFIRMED.
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