[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 28, 2008
No. 08-10029 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00295-CR-1-JTC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCUS AURELIUS JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
Before TJOFLAT, BLACK and WILSON, Circuit Judges.
WILSON, Circuit Judge:
Marcus Aurelius Johnson (“Johnson”) appeals the district court’s order of
restitution on the sole ground that it was imposed 39 months after his sentence was
imposed, well past the 90-day period required by 18 U.S.C. § 3664(d)(5). The
government moves to dismiss because Johnson knowingly and voluntarily
executed an appeal waiver as part of his plea agreement. For the reasons set forth
below, we grant the government’s motion to dismiss.
I. BACKGROUND
On May 21, 2004, Johnson was charged in an information with conspiracy
to commit identification document fraud in violation of 18 U.S.C. § 1028(f).
Shortly thereafter, on May 26, Johnson entered into a negotiated plea agreement,
the terms of which included an appeal waiver:
LIMITED WAIVER OF APPEAL: To the maximum extent permitted by
federal law, the defendant voluntarily and expressly waives the right to
appeal sentence and the right to collaterally attack sentence in any post-
conviction proceeding on any ground, except that the defendant may file a
direct appeal of (1) an upward departure from the otherwise applicable
sentencing guideline range; and/or (2) the sentencing court’s finding as to
the application of § 2b1.1(B)(1) of the Sentencing Guidelines in the event
the loss amount is determined to exceed $30,000.
(Plea Agreement, Government’s Motion to Dismiss, Ex. B at 5.)
The plea agreement further provided, above Johnson’s signature:
I have also discussed with my attorney the rights I may have to appeal or
challenge my sentence, and I understand that the appeal waiver contained
in the Plea Agreement will prevent me, with the narrow exceptions stated,
from appealing my sentence or challenging my sentence in any post-
2
conviction proceeding.
(Id. at 6.)
During the plea colloquy, Johnson advised the court that he understood that
the plea agreement contained a waiver of his right to appeal except in the limited
instances of an upward departure from the sentencing guidelines or in the event
the restitution amount exceeded $30,000:
Court: What are the circumstances in which Mr. Johnson would be able to
appeal?
Johnson’s Attorney: Yes, your Honor. We will have the ability to appeal
any upward departure [or if] the loss amount is determined to exceed
$30,000 . . . .
Court: Okay. But do you understand you would not have any right to
appeal? —
Johnson: Yes.
Court: — Or to file a later lawsuit challenging your sentence on any other
grounds?
Johnson: Yes.
(Tr. Plea Hearing, Government’s Motion to Dismiss, Ex. C at 10-11.)
On September 10, 2004, Johnson was sentenced to twenty-six months in
prison, three years of supervised release, a special assessment of one hundred
dollars, and an amount of restitution to be determined. Over three years later, on
December 20, 2007 the district court amended the judgment and ordered Johnson
to pay restitution in the amount of $21,593.70. It is undisputed that neither of the
exceptions to the appeal waiver are at issue. The sentence was within the
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guidelines range and the order of restitution did not exceed $30,000.00.
II. DISCUSSION
We review the validity of a sentence appeal waiver de novo. United States
v. Weaver, 275 F.3d 1320, 1333 n.21 (11th Cir. 2001). A sentence appeal waiver
must be made knowingly and voluntarily. Id. The waiver is valid if the
government shows either that: (1) the district court specifically questioned the
defendant about the waiver; or (2) the record makes clear that the defendant
otherwise understood the full significance of the waiver. United States v. Bushert,
997 F.2d 1343, 1351 (11th Cir. 1993).
Johnson argues that, notwithstanding his sentence appeal waiver, he may
appeal the amended judgment because the district court issued a restitution order
that was untimely pursuant to 18 U.S.C. § 3664(d)(5).1 Johnson cites to United
States v. Maung, 267 F.3d 1113 (11th Cir. 2001), wherein we stated that §
1
Section 3664(d)(5) provides:
If the victim’s losses are not ascertainable by the date that is 10 days prior to
sentencing, the attorney for the Government or the probation officer shall so inform the
court, and the court shall set a date for the final determination of the victim’s losses, not
to exceed 90 days after sentencing. If the victim subsequently discovers further losses,
the victim shall have 60 days after discovery of those losses in which to petition the
court for an amended restitution order. Such order may be granted only upon a showing
of good cause for the failure to include such losses in the initial claim for restitutionary
relief.
18 U.S.C. § 3664(d)(5).
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3664(d)(5) prohibits a district court from “impos[ing] a sentence and then
delay[ing] determination of the amount of losses more than 90 days from
sentencing.” Id. at 1121. Johnson argues that this untimeliness rendered the
sentence illegal and that even a valid waiver should not preclude us from vacating
it. In support, Johnson cites United States v. Andis, 333 F.3d 886 (8th Cir. 2003)
(en banc), in which the Eighth Circuit held that imposition of an illegal sentence
constituted “a miscarriage of justice” and may be appealed despite the existence of
an otherwise valid waiver. Id. at 891-92.
The government argues that Johnson knowingly and voluntarily waived his
right to appeal his sentence as evidenced by the clear terms of the plea agreement
as well as by the district court’s specific questioning of Johnson at the plea
hearing. The government argues that because restitution is part of a criminal
defendant’s waiver, see United States v. Satterfield, 743 F.2d 827, 837 (11th Cir.
1984) (“There can be little doubt that Congress intended the restitution penalties
of the VWPA [Victim and Witness Protection Act of 1982, 18 U.S.C. § 36632] to
be incorporated into the traditional sentencing structure.”), a waiver of the right to
2
At the time of our opinion in Satterfield, the VWPA was codified at 18 U.S.C. §§ 3579
and 3580; however, Congress recodified the VWPA as §§ 3663 and 3664 through the Sentencing
Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987. See United States v. Dickerson, 370
F.3d 1330, 1337 n.13 (11th Cir. 2004).
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appeal a sentence necessarily includes a waiver of the right to appeal the
restitution imposed. The government asserts that, although the Eighth Circuit
recognized a “miscarriage of justice” exception, the court cautioned that the
exception was “a narrow one and w[ould] not be allowed to swallow the general
rule that waivers of appellate rights are valid.” Andis, 333 F.3d at 891. The
government states that Johnson does not object to the substance of the amended
sentence (the amount of restitution did not exceed the $30,000 threshold), but
merely that the court acted untimely; thus, the sentence itself did not violate
Johnson’s right to due process or result in a miscarriage of justice.
In United States v. Kapelushnik, 306 F.3d 1090 (11th Cir. 2002), we held
that where “the district court fails to [issue an order of restitution] within the 90-
day limitations period, the judgment of conviction becomes final and contains no
enforceable restitution provision.” Id. at 1093-94. In Maung, however, we
indicated that in limited circumstances a district judge may impose restitution after
the 90-day period, such as “in cases where the defendant’s own bad faith” causes
the delay. Maung, 267 F.3d at 1122 (“Allowing the defendant’s own bad faith
delay to foreclose the entry of a restitution order could conceivably put restitution
in some cases in the defendant’s own discretion.”). Thus, although the question
was not before us, we recognized the possibility that the 90-day period could be
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equitably tolled. Id. Our reasoning in Maung comports with the well established
rule that equitable tolling principles “are read into every federal statute of
limitation” absent congressional intent to the contrary. Cook v. Deltona Corp.,
753 F.2d 1552, 1562 (11th Cir. 1985); see also Ellis v. Gen. Motors Acceptance
Corp., 160 F.3d 703, 707 (11th Cir. 1998) (same); Hill v. Texaco, Inc., 825 F.2d
333, 334 (11th Cir. 1987) (same).
Because the statute of limitations may be equitably tolled, it is not
jurisdictional. See Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir.
2005) (per curiam) (explaining that federal statutory limitations period under
scrutiny was “‘mandatory and jurisdictional’ [and therefore] not subject to
equitable tolling”); Coke v. Gen. Adjustment Bureau, Inc., 640 F.2d 584, 588-89
(5th Cir. 1981) (distinguishing between jurisdictional prerequisites and statutes of
limitations that can be equitably tolled).3 The crux of Johnson’s appeal, therefore,
is whether the factual circumstances of this case permitted the district court to
equitably toll the 90-day limitations period. We do not reach that question,
however, because we find that Johnson waived his statutory right4 to appeal his
sentence.
3
This court adopted as binding precedent the decisions of the former Fifth Circuit prior to
October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
4
“The right to appeal is purely statutory.” Bushert, 997 F.2d at 1347.
7
Johnson does not dispute that his waiver was knowing and voluntary; that
he explicitly waived an appeal as to restitution so long as the amount did not
exceed $30,000; or that the amount of restitution is, in fact, under $30,000. That
Johnson may have a meritorious argument on whether the court erred in
effectively equitably tolling the limitations period does not overcome his waiver in
this instance. As we have said previously, “[w]aiver would be nearly meaningless
if it included only those appeals that border on the frivolous.” United States v.
Howle, 166 F.3d 1166, 1169 (11th Cir. 1999). The waiver includes more than just
difficult or debatable legal issues; it includes “waiver of the right to appeal blatant
error.” Id.; United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005)
(per curiam).
We recognize, however, that an effective waiver is not an absolute bar to
appellate review. In Bushert, we commented that “a defendant who has executed
an effective waiver does not subject himself to being sentenced entirely at the
whim of the district court.” Bushert, 997 F.2d at 1350 (internal quotation marks
omitted). We indicated that “a defendant could not be said to have waived his
right to appellate review of a sentence imposed in excess of the maximum penalty
provided by statute or based on a constitutionally impermissible factor such as
race.” Id. at 1350 n.18 (internal quotation marks omitted). We also stated that
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“[i]t is both axiomatic and jurisdictional that a court of the United States may not
impose a penalty for a crime beyond that which is authorized by statute.” Id. Six
years after Bushert, we stated that “[i]n extreme circumstances—for instance, if
the district court had sentenced [the defendant] to a public flogging—due process
may require that an appeal be heard despite a previous waiver.” Howle, 166 F.3d
at 1169 n.5.
Assuming that the district court erred in delaying the issuance of the
restitution order, the 36 months that accrued beyond the 90-day threshold does
not, by itself, give rise to an “extreme circumstance” requiring it to be heard
despite a previous knowing and voluntary waiver. Johnson cannot be said to have
been subjected to the unfettered whim of the district court, or punished on the
basis of a constitutionally impermissible factor such as race. Furthermore, we do
not believe the Bushert court, in referencing “the maximum penalty provided by
statute” or the imposition of “a penalty for a crime beyond that which is authorized
by statute,” had in mind an untimely restitution order; rather, we read that
commentary as aiming at the imposition of a sentence exceeding the statutory
range authorized for the offense of conviction. The restitution statute at issue
here, 18 U.S.C. § 3663, has no prescribed statutory maximum. See Dohrmann v.
United States, 442 F.3d 1279, 1281 (11th Cir. 2006). Johnson can hardly be
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viewed as receiving punishment in excess of a statutory maximum—or, indeed,
even in excess of his own expectations—given that he agreed not to appeal an
order of restitution that did not exceed $30,000. “A plea agreement is, in essence,
a contract between the Government and a criminal defendant.” Howle, 166 F.3d at
1168. To allow an appeal in this instance would effectively write into the contract
an exception that the parties did not agree to. This we cannot do. The Sixth
Circuit has recently come to the same conclusion. See United States v. Gibney,
519 F.3d 301, 305-06 (6th Cir. 2008) (dismissing appeal due to waiver despite
defendant’s argument that district court’s restitution order exceeded the ninety-day
time frame in 18 U.S.C. § 3664(d)(5)).5
Before concluding, we recognize that there is a need for finality in imposing
5
To the extent that the Eighth Circuit’s application of the “miscarriage of justice”
exception, recognized in Andis, 333 F.3d at 891-92, would result in a different outcome, we
respectfully disagree. We are not sure, however, that the Eighth Circuit would apply the
“miscarriage of justice” exception in this case. The Eighth Circuit has previously held that a
defendant’s appeal waiver was not overcome by defendant’s arguments attacking restitution on
grounds of due process, insufficient evidence showing loss, and the victim’s failure to seek
restitution. United States v. Greger, 98 F.3d 1080, 1081-82 (8th Cir. 1996). We further note that
the Eighth Circuit has recently clarified the language in Andis referring to “a defendant ha[ving]
the right to appeal an illegal sentence, even though there exists an otherwise valid waiver.”
Andis, 333 F.3d at 891-92. In United States v. Schulte, 436 F.3d 849 (8th Cir. 2006), the court
cautioned that “not every action that is contrary to law or in excess of the district court’s statutory
authority constitutes an ‘illegal sentence’ that avoids an appeal waiver.” Id. at 850. Indeed, the
court stated that “[t]he concept of an ‘illegal sentence’ may not apply neatly to restitution orders,
as they are not in the nature of a criminal penalty.” Id. at 851 (internal quotation marks omitted).
The court explained that the focus of Andis was on “a statutory range” and that restitution orders
“are not subject to any prescribed statutory maximum.” Id. (internal quotation marks omitted).
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restitution and that a thirty-six month delay is not a trivial amount of time. Our
decision today does not provide district courts with free reign to disregard the 90-
day period where a defendant has executed an appeal waiver. Under different
circumstances, we can foresee how a delay may require our review despite a valid
waiver. Here, however, where Johnson voluntarily and knowingly waived an
appeal of restitution that did not exceed an amount of $30,000, where the court
imposed an amount less than $30,000, and where the length of delay beyond the
period of limitations is 36 months, Johnson’s waiver precludes our review.
Accordingly, we grant the government’s motion to dismiss.
SO ORDERED.
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