United States v. Margaret Ann Gordon

TYMKOVICH, Circuit Judge,

dissenting.

I would enforce the plea waiver. In my view, Gordon agreed to pay restitution to the multiple victims of her crimes.

As part of a plea deal, the government agreed to drop all but one count against Gordon in exchange for her guilty plea. Accordingly, she entered into a written plea agreement in which she agreed to be charged for the fraudulent use of one of the credit cards. The losses associated with the use of that card were $7,950.98. The plea agreement, however, did not place any express limits on the amount of restitution that could be ordered, stating that “the Court must order the payment of restitution to the victim(s) of the offense.” Vol. 1 D. 8 at 2.

Prior to sentencing, the government submitted a Presentence Report (PSR) to the court. The PSR recommended Gordon pay the following restitution to the victims of the frauds: Chase USA for $9,942.69; Discover Card for $7,795.59; Citicorp Credit Services, Inc. for $34,365.51 (four Citicorp cards were involved, including the one charged in the indictment); and Target Financial Services for $16,594.73. The PSR also made plain that all four amounts would “be used in establishing the sentencing guideline calculations.” Vol. 4 D. 1 at 12-14. Gordon initially objected to the loss calculation, but withdrew all objections at sentencing. In accordance with the PSR recommendation, the district court sentenced her to eighteen months imprisonment and ordered her to pay restitution totaling $68,698.52.

I.

An appellate waiver will be enforced if (1) the disputed appeal falls within the scope of the waiver; (2) the waiver was made knowingly and voluntarily; and (3) enforcing the waiver will not result in a miscarriage of justice. United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.2004).

We interpret the terms of a plea agreement “according to contract principles and what the defendant reasonably understood when he entered his plea.” United States v. Arevalo-Jimenez, 372 F.3d 1204, 1206 (10th Cir.2004) (quoting United States v. Chavez-Salais, 337 F.3d 1170, 1172 (10th Cir.2003)). Moreover, while we construe “any ambiguities in these agreements [] against the Government,” United States v. Porter, 405 F.3d 1136, 1142 (10th Cir.2005) (internal quotation omitted), we start by “examin[ing] the plain language of the plea agreement.” United States v. Taylor, 413 F.3d 1146, 1151 (10th Cir.2005). If the plain language is dispositive of the issue, our inquiry is at an end. Id. at 1152. Even *1213so, we may also look to the conduct of the parties to help ascertain the meaning of an appeal waiver. Chavez-Salais, 337 F.3d at 1173 (looking to Rule 11 colloquy). See also United States v. Gebbie, 294 F.3d 540 (3d Cir.2002) (“[F]aced with an ambiguous plea agreement, we must look to extrinsic evidence that may evince the parties’ intent.” Id. at 551. “[Only if the] extrinsic evidence does not resolve the ambiguity, then we construe the ambiguity against the drafter.” Id. at 551-552.).

I think Gordon understood her plea waiver precluded a challenge to the amount of restitution. First, the agreement contains a broad appellate waiver:

[Gordon] knowingly and voluntarily waives her right to ... appeal, collaterally challenge, or move to modify ... her sentence as imposed by the Court and the manner in which the sentence is determined, provided the sentence is within or below the applicable guideline range determined by the Court to apply to this case.

Vol. 1 D. 8 at 5-6. Second, the plea agreement expressly contemplates an award of restitution as part of the sentence. Under the section “Maximum Penalty, Restitution and Special Assessments,” the agreement provided that “the Court must order payment of restitution to the victim(s) of the offense.” Vol. 1 D. 8 at 2 (emphasis added).

II.

As a preliminary matter, Gordon conceded that mandatory restitution was expressly a part of the plea agreement (“the court must order the payment of restitution to the victim(s) of the offense”). The plain language of the plea agreement encompasses restitution and the other ordinary incidents of sentencing as part of the appellate waiver. The length of imprisonment, any fines or assessments, and restitution are all -listed as and understood to be a part of the court’s sentencing function and thus are properly considered within the scope of the appellate waiver.

The only question here, then, is whether the amount of restitution awarded is within the scope of the plea agreement. I think it is. First, as discussed above, the plea agreement, plainly acknowledges that mandatory restitution will be imposed as part of sentencing. The amount of restitution, like the length of her prison term or amount of fines, is not specified. Understanding that the ultimate sentence to be imposed was within the discretion of the sentencing court so long as it did not exceed the statutory maximum, Gordon agreed to enter the plea. She cannot now be heard to complain that the waiver is somehow invalid because it failed to set forth the amount of restitution possible. We have .never held a plea agreement’s appeal waiver unenforceable simply because it failed to establish the terms of the sentence with specificity. In fact, our cases “have consistently and repeatedly held that broad waivers are enforceable even where they are not contingent on the ultimate sentence falling within an identified sentencing range.” United States v. Montano, 472 F.3d 1202, 1205 (10th Cir.2007) (citing Hahn, 359 F.3d at 1328-29); United States v. Sandoval, 477 F.3d 1204 (10th Cir.2007) (defendant’s general waiver of appellate rights regarding his sentence precluded appeal of supervised-released terms, despite the fact that plea did not specifically reference these terms, because supervised-release is part of the sentence). I see no reason to treat the term of sentence and the amount of restitution any differently. Indeed, restitution is an inseparable component of a criminal sentence, particularly in the context of financial crimes as we have here.

*1214Second, although the plea agreement does not specify the exact amount of restitution, it contemplates that Gordon’s other frauds and victims will be considered by the court during sentencing. It expressly provides that the district court may look to multiple victims of her frauds and “order the payment of restitution to the victim(s) of the offense.” Vol. 1 D. 8 at 2. Moreover, when she entered her plea of guilty, Gordon acknowledged the district court could examine related criminal conduct in imposing a sentence. The Petition to Enter Plea of Guilty specifically states that “the court is required to take into account all conduct, circumstances, and injuries associated with your criminal conduct, whether or not this conduct is charged by the Government in the crime to which you are pleading guilty.” Vol. 1 D. 9 at 5. Gordon was thus on notice that all relevant conduct, including restitution to multiple “victim(s)” would be considered in sentencing her as a part of the plea agreement.

Supporting the language of the plea agreement, the record discloses the parties understood that the recommended sentence and amount of restitution would be based on the government’s presentence investigation and report. Following the pre-sentence investigation, the government prepared a PSR which disclosed a recommended sentence, including a contemplated amount of restitution based on Gordon’s credit card frauds. • Gordon thus knew well before sentencing that her related credit card offenses would be part of the amount of restitution proposed to the district court.

After the PSR was released, Gordon lodged a written objection to the contemplated amount of restitution. She wrote: “Defendant denies that the loss amount is at $68,698.52. This loss includes charges and debits including interest and late fees and miscellaneous fees along with legitimate charges made by card holder Marilyn Harman.” Vol. 1 D. 13. at 1. This objection was based on the technicalities of her crime, and had nothing to do with the fact that the recommended restitution exceeded the plea agreement.

In addition to being based on an entirely distinct theory than advanced on appeal, this objection was expressly withdrawn by Gordon at sentencing:

THE COURT: [Prosecutor], I believe you were about to call your next witness. GORDON’S COUNSEL: Your Honor, may I approach?
THE COURT: Yes.
GORDON’S COUNSEL: Your Honor, we and — [the Prosecutor] and I have talked over some of the objections that I have. If I could just have a minute to visit with my client, I think we may wish to withdraw those objections.
THE COURT: Take your time. GORDON’S COUNSEL: Your Honor, at this time, we wish to withdraw all objections. We were only arguing one of the objections and only that objection I believe because of some misunderstanding as to names. We wish to withdraw that.
THE COURT: That would be in regard to the loss attributable to — I believe it was Ms. — is her name Harman? GORDON’S COUNSEL: Yes, Your Honor. The misunderstanding was, as you can see from the United States’ exhibit, each of these says that the cards were in the name of Martha Coffey— that’s not correct. They were in the name of Marilyn Harman, yes.
THE COURT: I think that the — what it’s saying is the PO box is in the name of Martha Coffey.
GORDON’S COUNSEL: That’s where we had the mistake. And there’s another paragraph that they actually get the names interchanged.
*1215THE COURT: Ms. Gordon, you’re satisfied and you agree with your counsel’s announcement that you wish to withdraw your objection in this regard? DEFENDANT GORDON: Yes.

Vol. 2 at 48-50. Apparently, Gordon’s counsel discussed the amount of restitution with the prosecutor and concluded that reviving the objection was not in Gordon’s best interest. The sentencing judge gave counsel an opportunity to consult with Gordon in the courtroom, after which he asked Gordon whether she agreed to withdraw the objection. She said that she did.

Moreover, Gordon’s position on appeal— that she did not knowingly agree to pay restitution to multiple victims — is undermined by the fact that her prior objection was premised on an understanding that her victims would be recompensed. Specifically, her written objection rested not on the notion that the loss amount calculated exceeded her crimes, but rather that the calculation included “legitimate charges” made by the original card holder.

This understanding is also revealed more subtly by the concession of Gordon’s counsel at the plea hearing on August 9, 2004. Before the PSR was released and more than three months before sentencing, counsel told the court:

GORDON’S COUNSEL: We do not intend to challenge the [sentencing] guidelines, Your Honor. We’re — we are going to review the documentation provided to us by the United States Attorney’s Office as to the amount of loss totally, not necessarily as to this single offense that the Government has filed. So I think that the United States Attorney and I will be able to sit down and more accurately depict exactly what the loss is. And that, of course, will determine where this defendant falls within the guideline range.

Vol. 2 at 8. It is clear that Gordon’s counsel was aware even before the PSR was released, that Gordon’s sentence, including restitution, would be based on the total loss caused by her conduct and not just the charge of offense.

Thus, while the plea agreement was clear as to Gordon’s commitment to pay restitution for her fraud, the conduct of the parties also revealed their mutual understanding that restitution could be ordered for all victims of Gordon’s fraudulent conduct. Her representations at sentencing — namely the quashing of her objections to amounts of restitution and failure to seek withdrawal of her guilty plea based on misunderstanding or mistake1 — convince me that she knew and accepted that she would be ordered to pay restitution to all of her victims.

At the very least, Gordon waived any challenge to the amount of restitution (including an amount encompassing restitution to multiple victims) by withdrawing all of her objections at sentencing. In these circumstances, I see no plain error by the district court at sentencing.

III.

Gordon also advances a statutory argument that this appeal falls outside the scope of the appellate waiver based on her *1216reading of the Mandatory Victim Restitution Act (MVRA). She claims the district court was authorized under the MVRA to order restitution only in the amount of $7,950.98, the loss associated with the count of conviction. § 3663A(a)(l). Thus, she argues the amount of restitution exceeds the statutory maximum allowable for the crime and therefore falls outside the scope of the plea agreement. This argument fails because § 3663A(a)(3) allows courts to assess restitution to other victims where the parties agree, and here the plea agreement contemplates restitution to multiple victims.

Gordon’s related argument is that an award of restitution beyond the count of conviction takes her sentence outside the guideline range and thus exceeds the scope of the appellate waiver. The MVRA, however, contains no statutory cap on restitution nor does it indicate that the amount of restitution must fall within any particular guideline range. For example, in upholding a restitution award in the face of a defendant’s claim that the amount exceeded the dictates of the MVRA, the Sixth Circuit held:

Because the restitution statutes do not contain a maximum penalty, Sharp cannot be heard to complain that the restitution order violates the statutory maximum for his offense. Furthermore, the restitution order did not constitute a punishment in excess of the Guidelines range deemed applicable by the court. Unlike other penalties, such as imprisonment or supervised release, the amount of restitution ordered or the method of its calculation is not determined by the Guidelines. Because there is no applicable Guidelines range for the amount of restitution, the restitution order could not have constituted an upward departure from such a range.

United States v. Sharp, 442 F.3d 946, 952 (6th Cir.2006).

I agree with the court in Sharp. An award of restitution must be linked to the actual conduct of the defendant and is not subject to any specific cap. We are not faced with a situation where the defendant claims restitution exceeded the actual criminal conduct: Gordon does not deny that she was responsible for the losses stemming from each of the credit cards she used, but rather that she should not be obligated to pay restitution for losses beyond the formal charge.

Accordingly, I would enforce the plea waiver.

IV.

In the end, the complications in this case will require the government to revise its plea agreements to avoid the problems identified by the majority opinion. I, for one, see no problem with defendants agreeing to pay restitution to multiple victims as part of a plea deal, even if the amount of restitution will be calculated as part of the presentence investigation.

. A defendant who has entered a plea agreement may move to withdraw the plea prior to sentencing. The standard for withdrawal requires the defendant to show a “fair and just reason” for withdrawal, Fed.R.Crim.P. 32(d), which in this circuit turns on a balancing of various factors, such as whether the defendant has asserted actual innocence, prejudice to the government, and inconvenience to the court. See, e.g., United States v. Graham, 466 F.3d 1234, 1237-39 (10th Cir.2006); United States v. Gordon, 4 F.3d 1567 (10th Cir.1993). Gordon's failure to suggest to the court that restitution was improper or to withdraw her plea based on the claimed overbreadth of the PSR's restitution recommendation casts doubt on her view that it was not encompassed in the plea agreement.