IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 16, 2008
No. 07-60385
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
SHARON SMITH
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
Before KING, DeMOSS, and BENAVIDES, Circuit Judges.
DeMOSS, Circuit Judge:
Sharon Smith appeals the sentence imposed following her guilty plea
conviction for conspiracy to commit wire fraud, identity theft, identification and
authentication fraud, and possession and use of counterfeit and forged bank
checks with intent to defraud. Smith argues that the district court’s restitution
order was not supported by sufficient evidence. The Government maintains that
Smith’s appeal is barred by the appeal waiver in her plea agreement, or
alternatively, that the district court properly ordered Smith to pay restitution
based on the information contained in the presentence report (PSR).1
1
Smith’s plea agreement states the following, in relevant part: “Defendant hereby
expressly waives her rights to appeal the conviction or sentence imposed in this case, and the
No. 07-60385
In two unpublished cases, we have held that an appeal waiver barred
review of a restitution order, but both of those cases involved plea agreements
that explicitly stated that the defendant agreed to pay restitution in an amount
determined by the district court. See United States v. Helmer, 169 F. App’x 897,
898 (5th Cir. March 7, 2006) (plea agreement stated that “[t]he Defendant agrees
to pay restitution as determined by the Court”); United States v. Glynn, 149 F.
App’x 322, 323 (5th Cir. Oct. 7, 2005) (plea agreement stated that “defendant
further agrees that the Court will order full restitution in an amount determined
by the Court”); accord United States v. Lester, 200 F.3d 1179, 1179 (8th Cir.
2000) (defendant waived his right to appeal the restitution order when his plea
agreement stated that he would “pay any restitution ordered by the District
Court”).
Unlike Helmer and Glynn, the plea agreement in this case said nothing
about restitution. Furthermore, Smith’s obligation to pay restitution was not
clearly communicated during the Rule 11 colloquy. See United States v. Bond,
414 F.3d 542, 544 (5th Cir. 2005) (appeal waiver must be “knowing and
voluntary”). Although the district court told Smith that “restitution is
appropriate,” the prosecutor immediately responded that “I don’t think there’s
a restitution section in the plea agreement.” After stating that “I want to be sure
we understand where we are on that,” the district court changed the subject and
did not resolve the issue.2 See FED. R. CRIM. P. 11(b)(1)(K) (“[T]he court must
inform the defendant of, and determine that the defendant understands, the
following: the court’s authority to order restitution.”).
Additionally, the district court never informed Smith that the restitution
order was covered by the appeal waiver. See United States v. Baty, 980 F.2d 977,
manner in which sentence was imposed, on any ground whatsoever.”
2
At the sentencing hearing, the prosecutor stated that “[a]t the change of plea
[hearing], the estimate that I gave the Court [regarding the amount of restitution] was
$356,000.” This assertion is not supported by the record.
2
No. 07-60385
979 (5th Cir. 1992) (“It is up to the district court to insure that the defendant
fully understands her right to appeal and the consequences of waiving that
right.”); FED. R. CRIM. P. 11(b)(1)(N).
Because this appeal is more easily resolved on the merits, we decline to
address the issue of whether a general appeal waiver bars review of a restitution
order when the plea agreement does not discuss restitution. Compare United
States v. Adams, 363 F.3d 363, 365 (5th Cir. 2004) (“Restitution under the
MVRA [(Mandatory Victims Restitution Act)] is a criminal penalty and a
component of the defendant’s sentence”), and U.S. SENTENCING GUIDELINES
MANUAL § 5E1.1(a)(1) (2006) (requiring the district court to impose a restitution
order under the MVRA), with United States v. Sistrunk, 432 F.3d 917, 918 (8th
Cir. 2006) (general appeal waiver did not bar review of a restitution order when
the plea agreement did not discuss restitution), and United States v. Zink, 107
F.3d 716, 717-18 (9th Cir. 1997) (same), and United States v. Ready, 82 F.3d 551,
559-60 (2d Cir. 1996) (plea agreement was ambiguous as to whether the waiver
of the right to appeal the “sentence” included the restitution order, and this
ambiguity would be construed strictly against the Government), and United
States v. Broughton-Jones, 71 F.3d 1143, 1146-47 (4th Cir. 1995) (challenge to
an “illegal” restitution order is not barred by an otherwise valid general appeal
waiver). Although restitution is technically a component of the defendant’s
sentence, it is unclear “whether the waiver applies to the circumstances at hand,
based on the plain language of the [plea] agreement.” Bond, 414 F.3d at 544.
The plain language of Smith’s plea agreement did not mention restitution, and
the Rule 11 colloquy did not resolve this uncertainty.
“Once we have determined that an award of restitution is permitted by the
appropriate law, we review the propriety of a particular award for an abuse of
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No. 07-60385
discretion.”3 Adams, 363 F.3d at 365. Assuming that Smith did not waive her
right to appeal the restitution order, we conclude that the district court did not
abuse its discretion by ordering her to pay restitution in the amount of $346,946
jointly-and-severally with her co-defendants.
We reject Smith’s argument that the Government was required to present
live testimony or a sworn affidavit from the victim at the sentencing hearing
regarding the total amount of loss. “The district court may adopt the facts
contained in a presentence report without further inquiry if those facts have an
adequate evidentiary basis with sufficient indicia of reliability and the defendant
does not present rebuttal evidence or otherwise demonstrate that the
information in the PSR is unreliable.” United States v. Trujillo, 502 F.3d 353,
357 (5th Cir. 2007) (internal quotation marks and brackets omitted). “The
defendant bears the burden of showing that the information in the PSR relied
on by the district court is materially untrue.” Id.
In this case, the PSR indicates that the probation officer interviewed an
employee of the victim, who identified the amount of loss attributable to each
member of the conspiracy, including the $58,301 attributable to Smith, for a
total loss of $346,946. At the sentencing hearing, Smith’s attorney stated that
he calculated the total loss to be $305,005. This conclusory statement, standing
alone, does not demonstrate that the information contained in the PSR was
materially untrue. Smith did not introduce any rebuttal evidence or elicit any
live testimony at the sentencing hearing suggesting that the victim’s calculation
of the total loss was incorrect. See United States v. Valencia, 44 F.3d 269, 274
(5th Cir. 1995) (“Although Valencia correctly observes that no testimony was
presented on this issue, the record reflects no request for, or denial of, an
evidentiary hearing. Valencia has not shown that the PSR information is
3
We review de novo whether a restitution order is permissible under the MVRA.
Adams, 363 F.3d at 365. Smith does not challenge the applicability of the MVRA to her case.
See 18 U.S.C. § 3663A(c)(1)(A)(ii) (MVRA applies to “any offense committed by fraud or deceit”).
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No. 07-60385
untrue.”); see also United States v. Rodriguez, 897 F.2d 1324, 1327 (5th Cir.
1990) (noting that the defendant “never presented any evidence to rebut
anything in the [PSR]” and stating that the defendant must assert “with
specificity and clarity each factual mistake [in the PSR] of which he complains.”)
(internal quotation marks omitted).
Accordingly, we AFFIRM the judgment of the district court.4
4
Smith also argued at the sentencing hearing that she was not responsible for the
losses caused by her co-conspirators before she joined the conspiracy. She did not raise this
argument on appeal, so we decline to address it. United States v. Ogle, 415 F.3d 382, 383 (5th
Cir. 2005).
5