United States v. Michael Riolo

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15685 ELEVENTH CIRCUIT
OCTOBER 6, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK

D. C. Docket No. 09-80058-CR-KAM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL RIOLO,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(October 6, 2010)

Before BARKETT, HULL and FAY, Circuit Judges.

PER CURIAM:
 Michael Riolo appeals his convictions and sentences for five counts of mail

fraud. Riolo argues on appeal that his guilty plea is invalid for two reasons. First,

he asserts that the government breached his plea agreement by not following

through on a promise that he would be sentenced based on an offense level of 30

under the Sentencing Guidelines. Second, he states that he was not given sufficient

time to review the factual proffer, and was misadvised by defense counsel that

certain false statements in the proffer were not material. Riolo also contends that

the portion of his appeal waiver prohibiting him from collaterally attacking his

sentence through a 28 U.S.C. § 2255 motion is invalid because the district court

did not question him regarding that portion of the waiver, and it is not manifestly

clear from the record that he understood it. Finally, Riolo argues that the district

court lacked jurisdiction to order restitution because he filed a notice of appeal

prior to the entry of the restitution order. For the reasons set forth below, we

affirm Riolo’s convictions and sentences.

I.

The government filed an information charging Riolo with five counts of mail

fraud, in violation of 18 U.S.C. § 1341. Riolo waived his right to an indictment

and agreed to plead guilty to all five counts of the information under the terms of a

written plea agreement. As part of the plea agreement, the government promised to

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recommend a sentence reduction for acceptance of responsibility and to request a

sentence “at the low end of the guideline range, as that range is determined by the

Court.” The written agreement did not contain any provision stating that Riolo

would be sentenced based on a particular offense level or a particular guideline

range.

Under the plea agreement, Riolo waived his right to appeal his sentence

unless he received a sentence greater than the statutory maximum or greater than

the advisory guideline range determined by the court. Riolo also waived his right

to collaterally attack his sentence through a § 2255 motion. The written agreement

included a clause stating that it represented the entire agreement by the parties, and

that there were no other agreements, promises, representations, or understandings

unless contained in a letter from the United States Attorney’s Office executed by

all of the parties and counsel.

At a change-of-plea hearing, the district court placed Riolo under oath and

cautioned him that any false statements could later be used against him in a

prosecution for perjury. Riolo indicated that he had reviewed the plea agreement,

had discussed it “fully and completely” with his attorney, and understood all of its

terms and provisions. Riolo acknowledged that his guideline range would be

determined by the district court at sentencing, and that any recommendations made

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by the government would not bind the court. He stated that no one had made any

promises or representations as to the sentence that he would receive. He also

indicated that there were no promises or representations other than those contained

in the written plea agreement. The court questioned Riolo concerning the sentence

appeal waiver, and Riolo stated that he understood the waiver and was giving up

his right to appeal freely and voluntarily. Riolo stated that he had reviewed the

factual proffer and had discussed it with counsel. He indicated that all of the facts

set forth in the proffer were true and correct The district court accepted Riolo’s

guilty plea.

At the sentencing hearing, the district court determined that Riolo had a base

offense level of 38 and a criminal history category of I, giving him a guideline

range of 235-293 months. The court sentenced Riolo to concurrent terms of 240

months’ imprisonment with respect to Counts One through Four, and imposed a

consecutive 53-month sentence with respect to Count Five, for a total term of 293

months’ imprisonment. The court scheduled a hearing on restitution for a later

date.

Following the sentencing hearing, but before the scheduled restitution

hearing, the district court entered a final judgment. Riolo then filed a notice of

appeal. The district court subsequently held the restitution hearing, and ordered

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Riolo to pay $16,657,056.54 in restitution. The court entered an amended

judgment reflecting its determination of restitution. Riolo filed a second notice of

appeal with respect to the amended judgment.

II.

In the proceedings below, Riolo did not argue that the government breached

his plea agreement, nor did he assert that he did not have sufficient time to review

the factual proffer or that the factual proffer contained inaccurate information.

Therefore, we are reviewing only for plain error. See United States v. De La

Garza, 516 F.3d 1266, 1269 (11th Cir. 2008) (unpreserved claim that government

breached a plea agreement is reviewed for plain error); United States v. Moriarty,

429 F.3d 1012, 1019 (11th Cir. 2005) (claim involving asserted Fed.R.Crim.P. 11

violation is reviewed for plain error where not raised below). “Under plain error

review, there must be (1) an error, (2) that is plain, (3) that affects the defendant's

substantial rights, and (4) that seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” De La Garza, 516 F.3d at 1269.

The government must carry out any material promises that it makes as part

of a plea agreement. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495,

499, 30 L.Ed.2d 427 (1971). Before accepting a defendant’s guilty plea, the

district court “must determine that there is a factual basis for the plea.”

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Fed.R.Crim.P. 11(b)(3). “The purpose of this requirement is to protect a defendant

who mistakenly believes that his conduct constitutes the criminal offense to which

he is pleading.” United States v. Lopez, 907 F.2d 1096, 1100 (11th Cir. 1990).

“[W]hen a defendant makes statements under oath at a plea colloquy, he bears a

heavy burden to show that his statements were false.” United States v. Rogers, 848

F.2d 166, 168 (11th Cir. 1988).

In this case, Riolo has not shown that the government breached his plea

agreement. Although he contends that the government promised him an offense

level of 30, the record does not contain any evidence of such an agreement.

Moreover, Riolo stated under oath at the plea colloquy that he had reviewed the

written plea agreement and that the government had not made any promises or

representations other than those contained in the written agreement. He also

indicated that no one had made any promises or representations with respect to his

sentence. Thus, Riolo’s own sworn statements contradict his assertion that the

government promised him an offense level of 30.

In addition, Riolo has not shown plain error with respect to his factual

proffer. During the plea colloquy, Riolo acknowledged that he read the factual

proffer “fully and completely,” discussed it with his attorney, and understood all

the facts set forth therein. He agreed that all of the information in the factual

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proffer was true and correct. Thus, Riolo’s arguments concerning the proffer

contradict his own sworn statements at the change-of-plea hearing. Riolo has not

met his “heavy burden” of showing that his sworn statements were false. See

Rogers, 848 F.2d at 168. Accordingly, Riolo has failed to establish plain error

with respect to his guilty plea.

III.

Whether a defendant effectively waived his right to appeal his sentence is a

question of law that we review de novo. United States v. Bushert, 997 F.2d 1343,

1352 (11th Cir. 1993). A sentence appeal waiver is valid and enforceable so long

as it was knowingly and voluntarily made. Id. at 1350. In order to establish that

an appeal waiver was knowing and voluntary, “the government must show either

that (1) the district court specifically questioned the defendant about the provision

during the plea colloquy, or (2) it is manifestly clear from the record that the

defendant fully understood the significance of the waiver.” United States v.

Weaver, 275 F.3d 1320, 1333 (11th Cir. 2001).

We agree with the government that it would be premature to address the

validity of Riolo’s collateral attack waiver in the context of this direct appeal. The

question of whether the collateral waiver applies depends on the issues that Riolo

wishes to raise in a 28 U.S.C. § 2255 motion. For example, the waiver would

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prevent Riolo from raising a claim of ineffective assistance of counsel at

sentencing, but it would not necessarily bar a claim that counsel was ineffective in

advising Riolo concerning the consequences of pleading guilty. See Williams v.

United States, 396 F.3d 1340, 1342, n.2 (11th Cir. 2005) (holding that a collateral

sentence waiver precludes a defendant from arguing that counsel rendered

ineffective assistance during sentencing, but declining to reach the issue of

whether a collateral waiver would bar a claim of ineffective assistance in entering

or negotiating a guilty plea). Because it is unclear what claims Riolo intends to

bring in a § 2255 motion, we will not resolve this issue on direct appeal.

IV.

Although the government suggests that Riolo’s sentence appeal waiver

precludes him from arguing that the district court lacked jurisdiction to order

restitution, we have an obligation to consider, sua sponte, whether the district court

properly exercised jurisdiction over a case. Miccosukee Tribe of Indians of

Florida v. Kraus-Anderson Constr. Co., 607 F.3d 1268, 1272-73 (11th Cir. 2010).

Therefore, we will consider the merits of Riolo’s jurisdictional argument. We

review jurisdictional issues de novo. United States v. Lopez, 562 F.3d 1309, 1311

(11th Cir. 2009).

Generally, the filing of a notice of appeal deprives a district court of

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jurisdiction over all of the issues involved in the appeal. Griggs v. Provident

Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225

(1982). Nevertheless, a notice of appeal filed with respect to a non-appealable

order does not have any effect on the district court’s jurisdiction. United States v.

Hitchmon, 602 F.2d 689, 694 (5th Cir. 1979) (en banc), superseded by statute on

other grounds as recognized in United States v. Martinez, 763 F.2d 1297, 1308, n.

11 (11th Cir. 1985).

We have explained that a district court retains jurisdiction to order restitution

even if the defendant files a notice of appeal prior to the restitution hearing. United

States v. Kapelushnik, 306 F.3d 1090, 1093-94 (11th Cir. 2002). In Kapelushnik,

the district court entered a final judgment following sentencing, but scheduled a

separate restitution hearing for a later date, pursuant to 18 U.S.C. § 3664(d)(5). Id.

at 1093. Prior to the restitution hearing, the government filed a notice of appeal.

Id. The district court, believing that the notice of appeal divested it of jurisdiction

over the case, did not enter a restitution order within the 90-day period prescribed

by statute. Id. at 1094.

We concluded that the government’s notice of appeal did not, in fact,

preclude the district court from ordering restitution. Kapelushnik, 306 F.3d at

1094. We explained that the defendants’ convictions only became final after the

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90-day period for ordering restitution expired. Id. Therefore, the government’s

notice of appeal was a premature appeal of a non-final order that did not divest the

district court of jurisdiction. Id.

Here, Riolo’s conviction did not become final until the district court issued

the restitution order. See Kapelushnik, 306 F.3d at 1094. Thus, Riolo’s first notice

of appeal, filed prior to the restitution hearing, was a premature appeal of a non-

final order, and, as such, it did not deprive the district court of jurisdiction. See

Hitchmon, 602 F.2d at 694. Therefore, the district court retained jurisdiction to

enter the restitution order.

Accordingly, we affirm Riolo’s convictions and sentences.

AFFIRMED.

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