In re Sealed

• Citation: 702 F.3d 59
• Decision Date: 21 December 2012
• Docket Number: No. 11–3038.,11–3038.
• Parties: In re SEALED CASE.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

702 F.3d 59

In re SEALED CASE.

No. 11–3038.

United States Court of Appeals,District of Columbia Circuit.

Argued Nov. 8, 2012.

Decided Dec. 21, 2012.

Appeal from the United States District Court for the District of Columbia, No. 1:09–cr–00213–01.

Thomas J. Saunders argued the cause for the appellant.

Nicholas P. Coleman, Assistant United States Attorney, argued the cause for the appellee. Ronald C. Machen Jr., United States Attorney, and Roy W. McLeese III and Diane Lucas, Assistant United States Attorneys, were on brief.

Before: SENTELLE, Chief Judge, HENDERSON, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

After signing a plea agreement, the appellant pleaded guilty to four counts of sex trafficking of children, see18 U.S.C. § 1591(a)(1). At sentencing the district court imposed a term of imprisonment and also ordered the appellant to pay a total of $3,892,055 in restitution to the four victims. The appellant challenges the restitution order; the government argues, however, that he waived his right to appeal the restitution order. While we conclude the appellant did not waive his right to appeal the restitution order, we reject his merits argument and affirm the district court.

I.

From 2006 through 2009, the appellant prostituted four underage females: S.H., T.S., M.S. and A.L. He prostituted S.H. from approximately March 1, 2008 through August 2008; T.S. from approximately March 13, 2006 through May 15, 2009; M.S. from approximately May 17, 2009 through May 30, 2009; and A.L. from approximately May 27, 2009 through May 30, 2009. He did so by transporting each victim from his residence in Temple Hills, Maryland into the District of Columbia, where the four exchanged sex for money.

The government indicted the appellant on September 1, 2009. On December 11, 2009, he signed a ten-page plea agreement. The agreement provides that the appellant “agrees to admit guilt and enter a plea of guilty to ... four counts of violating 18 U.S.C. § 1591 (Sex Trafficking of Children).” Appendix (A) 24. Section Eleven of the plea agreement provides that “pursuant to 18 U.S.C. §§ 1593 and 3664, it is mandatory that the Court order [the appellant] to make restitution for the full amount of any victims' compensable losses” and that any contested restitution issue may be litigated at sentencing or at a subsequent hearing. A 28. Section Twelve of the plea agreement includes the following appeal waiver:

[The appellant] is aware that federal law, specifically 18 U.S.C. § 3742, affords [him] the right to appeal the sentence in this case. [He] is aware that in the event that sentence is imposed upon consideration of the Sentencing Guidelines rather than in accordance with Section Two [ i.e. if the Court rejects the plea agreement], the Government's factual stipulations and predictions about the calculation of the sentencing guidelines are not binding on the sentencing judge. Knowing that, [the appellant] waives the right to appeal his sentence or the manner in which it was determined pursuant to 18 U.S.C. § 3742, except to the extent that (a) the Court sentences [him] to a period of imprisonment longer than the statutory maximum, or (b) the Court departs upward from the applicable Sentencing Guideline range pursuant to the provisions of U.S.S.G. § 5K.2 or based on a consideration of the sentencing factors set forth in 18 U.S.C. § 3553(a). Further, [he] reserves the right to make a collateral attack upon [his] sentence pursuant to 28 U.S.C. § 2255, if new and currently unavailable information becomes known to him. In agreeing to this waiver, [the appellant] is aware that [his] sentence has yet to be determined by the Court. Realizing the uncertainty in estimating what sentence the Court ultimately will impose, [the appellant] knowingly and willingly waives [his] right to appeal the sentence, to the extent noted above, in exchange for the concessions made by the Government in this Agreement.

A 29.

On December 31, 2009, the appellant pleaded guilty before a magistrate judge, who accepted the plea agreement. On November 1, 2010, the district court sentenced the appellant to 240 months' imprisonment.

The district court also held separate evidentiary hearings on January 21 and February 3, 2011 to calculate the amount of restitution the appellant owed the four minors. Before the hearings, the court received (1) mental health assessments (MHAs) prepared by psychologist C. David Missar (Missar) for each of the four; and (2) a report from the four minors' guardian ad litem.

Missar's MHAs were based on his reviews of each victim's mental health records and other relevant records, as well as his interviews of A.L. and S.H. Missar did not interview M.S. or T.S. because M.S. had disappeared and T.S.'s family did not respond to Missar's attempts to contact them. Based on this information, Missar diagnosed each victim with various mental health and substance abuse problems, including Post–Traumatic Stress Disorder (PTSD). Missar recognized that some of the victims' mental health and substance abuse problems predated their association with the appellant but he concluded there was “little doubt” that the appellant had “exacerbated” any preexisting mental health problems. A 222, 226, 230, 242. Additionally, the fact that each victim was a minor prostitute working for the appellant created “tremendous additional emotional traumas” for each. A 222, 226, 230, 242. Missar concluded that each victim required “significant mental health services, in different stages and to differing degrees, for the rest of her life,” including therapy, psychiatric care and educational tutoring. A 222, 226, 230, 242. Missar created a “mid-range” estimate of the total cost of services each victim would need over her lifetime: $679,800 for A.L., $849,400 for T.S., $839,700 for M.S. and $849,400 for S.H.

The guardian ad litem submitted a restitution report on January 4, 2011. The report relied on Missar's recommendations, calculations of the money the appellant received due to each victim's prostitution (estimating each victim made $500 per day while prostituting) and sixty-eight hours of attorney's fees for each victim at $125 per hour. The total recommended restitution was $1,122,925 for T.S., $871,825 for M.S., $1,398,525 for S.H. and $632,525 for A.L.

Missar was the only witness at the district court's two restitution hearings, during which he explained the reasoning he used in preparing the MHAs. First, Missar acknowledged that the estimated amount for needed mental health services was similar for each victim despite the fact that the length of time each had worked for the appellant varied. Missar explained that PTSD can develop in a matter of days but can cause lifetime damage. While Missar acknowledged that each victim had health/drug problems, he nonetheless believed that his treatment recommendations were necessary and appropriate because even if a victim had had no pre-existing mental health problem, the appellant's abuse of her would have made necessary the treatment he recommended. Missar further explained that, while he had been unable to interview M.S. and T.S., he could render an expert opinion on their conditions/treatment based on his review of each victim's grand jury testimony, his extrapolation from the two victims he did interview and his previous experience in evaluating individuals without interviewing them.

On March 30, 2011, the district court granted, inter alia, the following restitution: (1) to S.H., $849,400 for treatment and $365,600 for ill-gotten gains; (2) to T.S., $573,800 for treatment and $577,500 for ill-gotten gains; (3) to M.S. $839,700 for treatment and $5,465 for ill-gotten gains; and (4) to A.L., $679,800 for treatment and $790 in ill-gotten gains. In determining the necessary treatment, the district court adopted all of Missar's recommendations but corrected the total amount in the guardian ad litem's report for T.S.'s treatment because of a mathematical error. In calculating ill-gotten gains, the district court relied primarily on each victim's grand jury testimony.¹ The appellant timely appealed.

II.

A.

The appellant challenges the district court's restitution order only. The government first maintains that the appellant waived his right to appeal the restitution order. We disagree.

A waiver of the right to appeal a sentence is presumptively valid and is enforceable if the defendant's decision to waive is “knowing, intelligent, and voluntary.” United States v. Guillen, 561 F.3d 527, 529 (D.C.Cir.2009); see also Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (“Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.”). Moreover, “[a]n anticipatory waiver—that is, one made before the defendant knows what the sentence will be—is nonetheless a knowing waiver if the defendant is aware of and understands the risks involved in his decision.” Guillen, 561 F.3d at 529;see also United States v. Cunningham, 145 F.3d 1385, 1391 (D.C.Cir.1998) (in waiving right to counsel, record must show defendant “knows what he is doing and his choice is made with eyes open”) (quotation marks omitted). “In the context of a plea bargain, ... a determination [of whether a waiver is knowing and intelligent] is usually made at the plea hearing, at which the court can fully explain the consequences of the waiver by informing the defendant of exactly what rights he is giving up and what rights he retains.” United States v. Accardi, 669 F.3d 340, 344 (D.C.Cir.2012) (citing Guillen, 561 F.3d at 528). A waiver, however, does not prevent an appeal if the district court commits an error of law during sentencing. See Guillen, 561 F.3d at 530. For example, a waiver is not “enforced if the sentencing court...