U.S. v. Gordon

• Decision Date: 28 March 2007
• Docket Number: No. 04-6384.,04-6384.
• Citation: 480 F.3d 1205
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Margaret Ann GORDON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

480 F.3d 1205

UNITED STATES of America, Plaintiff-Appellee, v. Margaret Ann GORDON, Defendant-Appellant.

No. 04-6384.

United States Court of Appeals, Tenth Circuit.

March 28, 2007.

Submitted on the briefs:^* William P. Earley, Assistant Federal Public Defender, Oklahoma City, OK, for Defendant-Appellant.

John C. Richter, United States Attorney, and Randal A. Sengel, Assistant United States Attorney, Oklahoma City, OK, for Plaintiff-Appellee.

Before KELLY, LUCERO, and TYMKOVICH, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Defendant-Appellant Margaret Ann Gordon appeals from the district court's order requiring her to pay restitution for credit card fraud in the amount of $68,698.52. Ms. Gordon argues the amount of restitution exceeds the statutory limits set forth in the Mandatory Victim Restitution Act (MVRA). See 18 U.S.C. § 3663A. The government filed two motions for enforcement of the plea agreement,¹ see United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir.2004) (en banc) (per curiam), arguing that Ms. Gordon waived her right to appeal the amount of restitution. Ms. Gordon responds that her challenge to the amount of restitution is not covered by her waiver of appellate rights and that, if it is, she did not enter the waiver knowingly and voluntarily. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we determine that Ms. Gordon may appeal the restitution order. We vacate that order and remand to the district for the entry of a restitution order in the amount of $7,950.98.

Background

On August 9, 2004, Ms. Gordon pled guilty to an Information charging her with a single count of credit card fraud in violation of 18 U.S.C. § 1029(a)(2):

[T]he defendant herein, knowingly and with intent to defraud used an unauthorized access device during a one-year period, that is Mastercard XXXX-XXXX-XXXX-9512, in a manner that affected interstate commerce, and by such conduct obtained something of value of $1,000 or more.

R. Doc. 1, at 1.

The loss associated with this count was $7,950.98. Ms. Gordon entered into a written plea agreement that did not place an express limit on the amount of restitution that could be ordered. Instead, the agreement stated: "the Court must order the payment of restitution to the victim(s) of the offense." I.R. Doc. 8, at 2. It also contained a waiver of Ms. Gordon's appellate rights. On November 19, 2004, the district court sentenced Ms. Gordon to serve eighteen months of imprisonment followed by three years of supervised release. It ordered her to pay restitution in the amount of $68,698.52.

The Pre-Sentence Report (PSR) included, as relevant conduct, monetary losses other than those associated with the count of conviction. Specifically, the PSR considered losses resulting from six other incidents where Ms. Gordon fraudulently used credit cards belonging to other persons.² The total loss resulting from the count of conviction and the other incidents was $68,698.52. The district court used that amount to calculate the guidelines sentence, and also based its restitution order on that amount. Ms. Gordon did not object to the restitution order at sentencing. On appeal, she challenges the restitution order to the extent it requires payments for losses not causally linked to the count of conviction. The government argues that Ms. Gordon's waiver of appellate rights bars her challenge to the restitution order.

Discussion

I. The Scope of the Waiver of Appellate Rights

Waivers of appellate rights are generally enforceable. Hahn, 359 F.3d at 1318. Consequently, before reaching the merits of this appeal, we must determine whether such review is precluded by the waiver. First, we must determine "whether the disputed appeal falls within the scope of the waiver of appellate rights." Id. at 1325. If the appeal does not fall within the scope of the waiver, our analysis ends and we may 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 [her] appellate rights," and "whether enforcing the waiver would result in a miscarriage of justice. . . ." Id.

Plea agreements are governed by contract principles. United States v. Rockwell Int'l Corp., 124 F.3d 1194, 1199 (10th Cir.1997). One key principle is the doctrine of contra proferentem; that ambiguities in agreements are to be construed against the drafter. See Restatement (Second) of Contracts § 206 (1981). Thus, in determining the scope of a waiver, the court must strictly construe any ambiguities in the agreement against the government (the drafter) and in favor of the defendant. Hahn, 359 F.3d at 1325. This means waivers should be narrowly construed. Id.

Ms. Gordon's plea agreement contains the following waiver of appellate rights:

Defendant understands that a sentencing guideline range for her case will be determined by the Court under the guidelines issued by the U.S. Sentencing Commission. Defendant also understands that the Court has jurisdiction and authority to impose any sentence within the statutory maximum for the offense(s) to which she is pleading guilty. Defendant further understands that Title 28, United States Code, Section 1291, and Title 18, United States Code, Section 3742 give her the right to appeal the judgment and sentence imposed by the Court. Acknowledging all this, defendant in exchange for the promises and concessions made by the United States in this plea agreement, knowingly and voluntarily waives her right to:

(a) Appeal or collaterally challenge her guilty plea and any other aspect of her conviction, including but not limited to any rulings on pretrial suppression motions or any other pretrial dispositions of motions and issues;

(b) Appeal, collaterally challenge, or move to modify under 18 U.S.C. § 3582(c)(2) or some other ground, 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. . . .

(c) It is provided that (i) defendant specifically does not waive the right to appeal an upward departure from the sentencing guideline range determined by the Court to apply to this case, and (ii) her waiver of rights to appeal and to bring collateral challenges shall not apply to appeals or challenges based on changes in the law reflected in Tenth Circuit or Supreme Court cases decided after the date of this agreement that are held by the Tenth Circuit or Supreme Court to have retroactive effect.

R. Doc. 8, at 5-6 (emphasis added).

Other relevant provisions of the plea agreement stated: (1) "[t]his agreement applies only to the criminal violations described and does not apply to any civil matter or any civil forfeiture proceeding except as specifically set forth," id. at 1, and (2) "the Court must order the payment of restitution to the victim(s) of the offense," id. at 2.

Ms. Gordon's petition to enter a plea of guilty further stated:

If you plead GUILTY the judge may require you to make restitution to any victim of the offense (18 U.S.C. § 3579 [for pre-Guidelines violations], 3663, and 3664). If you plead GUILTY to an offense that occurred on or after April 24, 1996, and the offense falls into certain categories of offenses, including property offenses and crimes of violence, ordinarily the judge is required to order you to pay restitution to any victim of the offense (18 U.S.C. § 3663A).

R. Doc. 9, at 4 (emphasis added) (bracketed text in original)

Because Ms. Gordon argues that the restitution order is unlawful under the MVRA, our task is discrete: we need only determine whether Ms. Gordon waived the right to challenge an unlawful restitution order.³ In this regard, we think it clear that Ms. Gordon preserved her right to appeal such an order.

Analysis of the scope of a waiver of appellate rights must extend beyond discrete clauses. A contract must be "interpreted as a whole," and "[w]ords and other conduct are interpreted in the light of all the circumstances." Restatement, supra, at § 202(1),(2). Furthermore, "if the principal purpose of the parties is ascertainable it is given great weight." Id. § 202(1). In this case, the plea agreement, read in its totality, suggests the parties only intended that Ms. Gordon would waive the right to appeal aspects of her sentence and restitution that were imposed within the authority granted to the district court by the relevant statutes.⁴ For example, the first paragraph of the waiver states: "Defendant also understands that the Court has jurisdiction and authority to impose any sentence within the statutory maximum for the offense(s) to which she is pleading guilty." R. Doc. 8, at 5 (emphasis added). Furthermore, Ms. Gordon only waived the right to collaterally attack her sentence "provided the sentence is within or below the applicable guideline range determined by the Court." Id. at 6 (emphasis added). These clauses suggest, at the very least, that Ms. Gordon did not waive the right to appeal a sentence of imprisonment beyond that which could be lawfully imposed. More broadly, they also suggest Ms. Gordon did not intend to waive the right to appeal an unlawful restitution order. See United States v. Gordon, 393 F.3d 1044, 1050 (9th Cir.2004) ("A restitution order which exceeds its authority under MVRA is equivalent to an illegal sentence. Such a restitution order is in excess of the maximum penalty provided by statute and, therefore, the waiver of appeal is inapplicable to it.") (internal citations, alterations, and quotations omitted); United States v. Broughton-Jones, 71 F.3d 1143, 1147 (4th Cir.1995) ("Because a restitution order imposed when it is not authorized . . . is no less `illegal' than a sentence of imprisonment that exceeds the statutory maximum [such] appeals . . . are similarly outside the scope of a defendant's otherwise valid appeal waiver.").

Moreover, we question whether Ms. Gordon could...