F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 21, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 06-6309
v.
ADRIAN COO PER,
Defendant - Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FO R TH E W ESTERN DISTRICT O F O K LAH O M A
(D.C. No. 05-CR-214-T)
Submitted on the briefs: *
Scott E. W illiams, Assistant United States Attorney (and John C. Richter, United
States Attorney, on the brief), Oklahoma City, Oklahoma, for Plaintiff - Appellee.
Susan M . Otto, Federal Public Defender, Oklahoma City, Oklahoma, for
Defendant - Appellant.
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.
*
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G ).
The cause therefore is ordered submitted without oral argument.
K ELLY, Circuit Judge.
Defendant-Appellant Adrian Cooper seeks to appeal the restitution aw ard
imposed by the district court and its decision to require M r. Cooper to submit a
DNA sample as a condition of supervised release. Specifically, M r. Cooper
argues that the government failed to produce sufficient evidence to prove that
Joshua Kuhn was a “victim” of M r. Cooper’s related conduct, and that the total
restitution award should be reduced by $135,000 as a result. M r. Cooper also
argues that the condition of supervised release violates the Fourth Amendment,
given that he is a first-time offender convicted of non-violent crimes. The
government responds that M r. Cooper’s entire appeal is barred by the waiver of
the right to appeal contained in his plea agreement. Exercising jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we conclude that both of M r. Cooper’s
challenges fall within the scope of the waiver and, accordingly, we dismiss his
appeal.
Background
On November 16, 2005, a grand jury issued a nineteen-count indictment
against M r. Cooper charging him with securities fraud, wire and mail fraud,
money laundering, and the use of false social-security numbers. R. Doc. 1. The
charges stemmed from several schemes created by M r. Cooper to defraud
investors while he worked as a stock broker at M errill Lynch and to defraud real
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estate investors and other investors independent of his employment at M errill
Lynch. On M arch 27, 2006, M r. Cooper pled guilty to Count 1 (securities fraud)
and Count 4 (money laundering) pursuant to a negotiated plea agreement with the
government. R. Docs. 23 & 24. The indictment described in detail the victims of
the acts that formed the basis for Counts 1 and 4. The indictment did not list M r.
Kuhn as a victim of either count.
The plea agreement stated:
[T]he Court must order the payment of restitution to the victims of
the offense. Pursuant to 18 U.S.C. §§ 3663(a)(3) and 3663A, the
parties further agree that, as part of the sentence resulting from the
defendant’s plea, the Court will enter an order of restitution for all
losses caused to the victims of the defendant’s relevant conduct[ 1 ]
determined by reference to the U nited States Sentencing G uidelines.
R. Doc. 23 at 2-3. The plea agreement also contained a waiver of the right to
appeal, in which M r. Cooper agreed to:
. . . knowingly and voluntarily waive[] his right to appeal,
collaterally challenge, or move to modify . . . [his] guilty plea and
any other aspect of his conviction . . . [and the] sentence as imposed
by the Court and the manner in which the sentence is determined . . .
.
Id. at 5.
According to the pre-sentence report (PSR ), M r. Cooper’s relevant conduct
included $200,000 in related fraud against M r. Kuhn. Of this amount, the PSR
1
The M andatory Victims Restitution Act states that “[t]he court shall also
order, if agreed to by the parties in a plea agreement, restitution to persons other
than the victim of the offense [of conviction].” 18 U.S.C. § 3663A(a)(3).
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concluded that M r. Cooper still owed M r. Kuhn $135,000. M r. Cooper objected
to the $135,000 figure because M r. Kuhn possessed a fourth-in-line mortgage on
M r. Cooper’s house and could possibly recover the entire amount upon
foreclosure. The district court overruled M r. Cooper’s objection.
On September 18, 2006, the district court sentenced M r. Cooper to serve 75
months’ imprisonment. It also ordered M r. Cooper to pay restitution to various
victims in the total amount of $968,656, which included $135,000 in restitution to
M r. Kuhn. The district court also imposed, as a condition of M r. Cooper’s
supervised release, that he “cooperate in the collection of DNA as directed by the
probation officer.” R. Doc. 43, at 3.
Discussion
W aivers of the right to appeal are generally enforceable. See United States
v. Gordon, 480 F.3d 1205, 1207 (10th Cir. 2007). “Consequently, before reaching
the merits of this appeal, we must determine whether such review is precluded by
the waiver.” Id. First, we determine “whether the disputed appeal falls within the
scope of the waiver of appellate rights.” United States v. Hahn, 359 F.3d 1315,
1325 (10th Cir. 2004). If the appeal does not fall within the scope of the w aiver,
our analysis ends and we proceed to the merits. If the appeal is within the scope
of the waiver, we must next determine “whether the defendant knowingly and
voluntarily waived his appellate rights,” and “whether enforcing the waiver would
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result in a miscarriage of justice . . . .” Id.
As we have stated frequently, plea agreements are governed by contract
principles. Gordon, 480 F.3d at 1207 (citing United States v. Rockwell Int’l
Corp., 124 F.3d 1194, 1199 (10th Cir. 1997)). One consequence is that any
ambiguities in a plea agreement are construed against the government. Id. (citing
Restatement (Second) of Contracts § 206 (1981) for the doctrine of contra
proferentem). Thus, in determining the scope of M r. Cooper’s waiver, we will
construe all ambiguities in the agreement against the government and in favor of
M r. Cooper.
In this case, M r. Cooper agreed to a broad waiver of appellate rights.
Essentially, M r. Cooper agreed to waive two things: (1) his right to challenge his
“guilty plea and any other aspect of his conviction,” and (2) his right to challenge
the “sentence as imposed by the Court and the manner in which the sentence is
determined.” R. Doc. 23, at 5. M r. Cooper does not challenge the fact of his
guilt, so the first waiver is not implicated. The second waiver is implicated,
however, and the government argues that M r. Cooper’s challenge to the
restitution award falls within the scope of his w aiver of the right to challenge his
“sentence as imposed by the Court.”
W e have yet to determine whether a general waiver of the right to appeal a
“sentence” necessarily includes a waiver of the right to appeal all restitution
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awards. A majority of our sister circuits have concluded that such language does
not include a general waiver of the right to appeal a restitution award. See United
States v. Sistrunk, 432 F.3d 917, 918 (8th Cir. 2006); United States v. Smith, 344
F.3d 479, 483 (6th Cir. 2003); United States v. Behrman, 235 F.3d 1049, 1052
(7th Cir. 2000); United States v. Zink, 107 F.3d 716, 717-18 (9th Cir. 1997);
United States v. Ready, 82 F.3d 551, 560 (2d Cir. 1996); but see United States v.
Cohen, 459 F.3d 490, 497 (4th Cir. 2006). In this case, however, the plea
agreement makes clear that the parties considered a restitution award for victims
of M r. Cooper’s related conduct to be part of his “sentence.” The plea agreement
expressly and unambiguously states: “[T]he parties further agree that, as part of
the sentence resulting from the defendant’s plea, the Court will enter an order of
restitution for all losses caused to the victims of the defendant’s relevant conduct
. . . .” R. Doc. 23 at 2-3 (emphasis added). The parties agree that this provision
of the plea agreement formed the basis of the district court’s $135,000 restitution
award to M r. Kuhn. Accordingly, M r. Cooper’s challenge to the amount of
restitution awarded to M r. Kuhn clearly falls within the scope of his waiver of the
right to appeal.
Similarly, M r. Cooper’s challenge to the condition of supervised release is
also clearly part of his “sentence” and is thus barred by his waiver of the right to
appeal. See United States v. Sandoval, 477 F.3d 1204, 1207 (10th Cir. 2007)
(noting that a condition of supervised release is part of the “sentence” imposed);
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see also 18 U.S.C. § 3583(a) (authorizing a district court to impose a term of
supervised release “as a part of the sentence”). W hile w e would normally
proceed to determine w hether M r. Cooper’s waiver was knowing and voluntary
and whether enforcement of the waiver would result in a miscarriage of justice,
M r. C ooper does not raise these arguments in his brief and we deem them waived.
See State Farm Fire & Cas. Co. v. M hoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).
Nevertheless, M r. Cooper argues that his challenge to the restitution aw ard
should survive the waiver of the right to appeal because it constitutes a challenge
to the legality of the restitution award. See Gordon, 480 F.3d at 1210. The
exception created by Gordon however, is extremely narrow and applies only in
the case where there is no factual dispute as to the amount of restitution linked to
an offense and the legality of the district court’s restitution aw ard can therefore
be reviewed solely as a question of law. Id. at 1209 n.4. In this case, M r. Cooper
raises a factual challenge to the restitution award, arguing that the government
failed to produce sufficient evidence to prove that M r. Kuhn was a victim of M r.
Cooper’s related conduct because M r. Kuhn possessed a fourth-in-line mortgage
on M r. C ooper’s house from which he might recover some of his losses.
See Aplt. Br. at 9-10. Indeed, M r. Cooper’s own appellate brief characterizes his
challenge as factual in nature: “[M r. Cooper] presented a timely challenge to the
inclusion of [M r. Kuhn] who claimed losses associated with his conduct. M r.
Cooper stated a factual basis for his challenge. The United States did not rebut
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the factual assertion presented . . . and did not present additional evidence for the
sentencing court’s consideration.” Aplt. Br. at 10 (emphasis added). A challenge
to the amount of a restitution award based on sufficiency of the evidence is
necessarily based on disputed facts and thus does not fall within the Gordon
exception. Accordingly, it is clearly barred by a general waiver of the right to
appeal a restitution award.
D ISM ISSED .
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