U.S. v. Smith

• Citation: 528 F.3d 423
• Decision Date: 16 May 2008
• Docket Number: No. 07-60385 Summary Calendar.,07-60385 Summary Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sharon SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

528 F.3d 423

UNITED STATES of America, Plaintiff-Appellee, v. Sharon SMITH, Defendant-Appellant.

No. 07-60385 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

May 16, 2008.

Paul David Roberts, Asst. U.S. Atty., Oxford, MS, for U.S.

Robert W. Davis, Jr., Tupelo, MS, for Smith.

Appeal from the United States District Court for the Northern District of Mississippi.

Before KING, DeMOSS and BENAVIDES, Circuit Judges.

DeMOSS, Circuit Judge:

Sharon Smith appeals the sentence imposed following her guilty plea conviction for conspiracy to commit wire fraud, identity theft, identification and authentication fraud, and possession and use of counterfeit and forged bank checks with intent to defraud. Smith argues that the district court's restitution order was not supported by sufficient evidence. The Government maintains that Smith's appeal is barred by the appeal waiver in her plea agreement, or alternatively, that the district court properly ordered Smith to pay restitution based on the information contained in the presentence report (PSR).¹

In two unpublished cases, we have held that an appeal waiver barred review of a restitution order, but both of those cases involved plea agreements that explicitly stated that the defendant agreed to pay restitution in an amount determined by the district court. See United States v. Hemler, 169 Fed.Appx. 897, 898 (5th Cir.2006) (plea agreement stated that "[t]he Defendant agrees to pay restitution as determined by the Court"); United States v. Glynn, 149 Fed.Appx. 322, 323 (5th Cir. 2005) (plea agreement stated that "defendant further agrees that the Court will order full restitution in an amount determined by the Court"); accord United States v. Lester, 200 F.3d 1179, 1179 (8th Cir.2000) (defendant waived his right to appeal the restitution order when his plea agreement stated that he would "pay any restitution ordered by the District Court").

Unlike Hemler and Glynn, the plea agreement in this case said nothing about restitution. Furthermore, Smith's obligation to pay restitution was not clearly communicated during the Rule 11 colloquy. See United States v. Bond, 414 F.3d 542, 544 (5th Cir.2005) (appeal waiver must be "knowing and voluntary"). Although the district court told Smith that "restitution is appropriate," the prosecutor immediately responded that "I don't think there's a restitution section in the plea agreement." After stating that "I want to be sure we understand where we are on that," the district court changed the subject and did not resolve the issue.² See FED.R.CRIM.P. 11(b)(1)(K) ("[T]he court must inform the defendant of, and determine that the defendant understands, the following: the court's authority to order restitution.").

Additionally, the district court never informed Smith that the restitution order was covered by the appeal waiver. See United States v. Baty, 980 F.2d 977, 979 (5th Cir.1992) ("It is up to the district court to insure that the defendant fully understands her right to appeal and the consequences of waiving that right."); FED. R.CRIM.P. 11(b)(1)(N).

Because this appeal is more easily resolved on the merits, we decline to address the issue of whether a general appeal waiver bars review of a restitution order when the plea agreement does not discuss restitution. Compare United States v. Adams, 363 F.3d 363, 365 (5th Cir.2004) ("Restitution under the MVRA [(Mandatory Victims Restitution Act)] is a criminal penalty and a component of the defendant's sentence"), and U.S. SENTENCING GUIDELINES MANUAL § 5E1.1(a)(1) (2006) (requiring the district court to impose a restitution order under the MVRA), with United States v. Sistrunk, 432 F.3d 917, 918 (8th Cir.2006) (general appeal waiver did not bar review of a restitution order when the plea agreement did not discuss restitution), and United States v Zink, 107 F.3d 716, 717-18 (9th Cir.1997) (same), and United States v. Ready, 82 F.3d 551, 559-60 (2d Cir.1996) (plea agreement was ambiguous as to whether the waiver of the right to appeal the "sentence" included the restitution order, and this ambiguity would be construed strictly against the Government), and United States v. Broughton-Jones, 71 F.3d 1143, 1146-47 (4th Cir.1995) (challenge to an "illegal" restitution order is not barred by an otherwise valid general appeal waiver). Although restitution is technically a component of the defendant's sentence, it is unclear "whether the waiver applies to the circumstances at hand, based on the plain language of the [plea] agreement." Bond, 414 F.3d at 544. The plain language of Smith's plea agreement did not mention restitution, and the Rule 11 colloquy did not resolve this uncertainty.

"Once we have determined that an award of restitution is permitted by the appropriate law, we review the propriety of a particular award for an abuse of discretion."³ Adams, 363 F.3d at 365. Assuming that Smith did not waive her right to appeal the restitution order, we conclude that the district court did not abuse its discretion by ordering her to pay restitution in the amount of $346,946 jointly-and-severally with her co-defendants.

We reject Smith's argument that the Government was required to present live testimony or a sworn affidavit from the victim at the sentencing hearing regarding the total amount of loss. "The district court may adopt the facts contained in a presentence report without further inquiry if those facts have an adequate evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information in the PSR is unreliable." United States v. Trujillo, 502 F.3d 353, 357 (5th Cir.2007) (internal quotation marks and brackets omitted). "The defendant bears the burden of showing that the information in the PSR relied on by the district court is materially untrue." Id.

In this case, the PSR indicates that the probation officer interviewed an employee of the victim, who identified the amount of loss attributable to each member of the conspiracy, including the $58,301 attributable to...