USCA11 Case: 21-11286 Date Filed: 09/27/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11286
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELVIS HAROLD REYES,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cr-00111-VMC-AAS-1
____________________
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2 Opinion of the Court 21-11286
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No. 21-12510
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELVIS HAROLD REYES,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cr-00111-VMC-AAS-1
____________________
Before JORDAN, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
Elvis Reyes appeals his conviction and sentence for mail
fraud and aggravated identity theft. He argues that the district
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21-11286 Opinion of the Court 3
court’s restitution order was not supported by sufficient evidence.
We conclude that Reyes’s sentence—including the order of
restitution—does not exceed the statutory maximum and does not
violate the Eighth Amendment, and Reyes’s appeal is otherwise
barred by the appeal waiver in his plea agreement. We therefore
affirm.
I.
Reyes was charged in a 25-count indictment with mail fraud,
making false statements on immigration forms, and aggravated
identity theft. He entered into a written plea agreement in which
he agreed to plead guilty to one count of mail fraud and one count
of aggravated identity theft and “to make full restitution” to the
victims of his offense pursuant to 18 U.S.C. §§ 3663 and 3663A, and
the government agreed to move to dismiss the other charges.
Reyes acknowledged that the amount of restitution would be
determined by the court and would be at least $265,627. The plea
agreement also provided that Reyes waived his right to appeal his
sentence on any ground, unless the district court imposed a
sentence above the statutory maximum or the applicable
Sentencing Guidelines range, the sentence violated the Eighth
Amendment, or the government appealed his sentence.
After a change-of-plea hearing in which the magistrate judge
discussed all the relevant provisions of the plea agreement with
Reyes, the district court accepted the plea agreement and Reyes’s
guilty plea. The court sentenced Reyes to 249 months in prison
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4 Opinion of the Court 21-11286
followed by three years of supervised release. It later amended the
judgment to add an order of restitution in the amount of $442,368.
Reyes appealed both the initial judgment and the amended
judgment, and we granted his motion to consolidate these appeals.
His sole argument on appeal is that that the government failed to
present sufficient evidence of loss to support the full amount of
restitution calculated by the district court. Reyes does not
challenge the validity of the appeal waiver in his plea agreement;
he contends that his argument is not barred by his appeal waiver
because the restitution order (1) exceeded the statutory maximum,
and (2) violated the Eighth Amendment’s prohibition on excessive
fines. We reject the arguments that fall within the exceptions to
Reyes’s appeal waiver, and we decline to consider his remaining
argument.1
II.
A.
To avoid his appeal waiver, Reyes attempts to recast his
argument that the court relied on insufficient evidence in
calculating restitution as an argument that the amount of
restitution exceeded the statutory maximum. We can make short
work of that argument because the restitution statute does not
1 “[W]e review the legality of a sentence de novo.” United States v. Moriarty,
429 F.3d 1012, 1025 (11th Cir. 2005). We also review the scope of an appeal
waiver de novo. King v. United States, 41 F.4th 1363, 1366 (11th Cir. 2022).
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21-11286 Opinion of the Court 5
have a maximum. See 18 U.S.C. §§ 3663, 3663A; Dohrmann v.
United States, 442 F.3d 1279, 1281 (11th Cir. 2006). To the extent
that Reyes challenges the district court’s findings regarding the
number of victims or the amount of loss per victim, those
arguments are barred by his appeal waiver. See United States v.
Grinard-Henry, 399 F.3d 1294, 1295–96 (11th Cir. 2005) (appeal
waiver barred challenge to sentence based on court’s drug-quantity
findings); see also United States v. Johnson, 541 F.3d 1064, 1067–68
(11th Cir. 2008) (sentence appeal waiver barred challenge to
untimely restitution order).
B.
Reyes also asserts, without elaboration, that the district
court’s restitution order violated the Excessive Fines Clause of the
Eighth Amendment. “The touchstone of the constitutional inquiry
under the Excessive Fines Clause is the principle of
proportionality”; a fine is excessive “if it is grossly disproportional
to the gravity of a defendant’s offense.” United States v. Bajakajian,
524 U.S. 321, 334 (1998). The restitution imposed here was directly
proportional to Reyes’s offense because he was ordered to pay only
the amount of actual loss to the victims. Assuming for argument’s
sake that restitution could be considered a “fine”—that is, “a
payment to a sovereign as punishment for some offense”—Reyes’s
restitution was not “excessive” and did not violate the Eighth
Amendment. Id. at 327.
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* * *
The district court’s order of restitution did not exceed the
statutory maximum penalty and did not violate the Eighth
Amendment. Reyes’s challenge to the district court’s calculation
of actual loss to the victims is barred by the appeal waiver in his
plea agreement, and we decline to consider it. See United States v.
Boyd, 975 F.3d 1185, 1191 (11th Cir. 2020) (reaching the merits of a
defendant’s challenge to his sentence despite his appeal waiver
would deprive the government of the benefit of its bargain). We
therefore affirm Reyes’s convictions and sentence.
AFFIRMED.