United States v. Keele

• Decision Date: 02 June 2014
• Docket Number: No. 12–10551.,12–10551.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ricky J. KEELE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

755 F.3d 752

UNITED STATES of America, Plaintiff–Appellee,

v.Ricky J. KEELE, Defendant–Appellant.

No. 12–10551.

United States Court of Appeals,

Fifth Circuit.

June 2, 2014.

Brian W. McKay, Esq., Assistant U.S. Attorney, Dallas, TX, for Plaintiff–Appellee.

Seth Kretzer, Law Offices of Seth Kretzer, Houston, TX, for Defendant–Appellant.

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

Before STEWART, Chief Judge, and JOLLY and SMITH, Circuit Judges.

CARL E. STEWART, Chief Judge:

IT IS ORDERED that the opinion previously filed in this case, United States v. Keele, 742 F.3d 192 (5th Cir.2014), is WITHDRAWN. The following opinion is substituted therefor:

Defendant–Appellant Ricky J. Keele pled guilty to a superseding information that charged him with removing property to prevent seizure and aiding and abetting in violation of 18 U.S.C. §§ 2232(a) and 2. The district court sentenced Keele and ordered restitution. Despite the general appeal waiver provision contained in his plea agreement, Keele now challenges the district court's restitution order, arguing that it was not encompassed by his appeal waiver. We dismiss.

FACTS

Keele was charged in a superseding bill of information with helping Matthew Simpson dispose of, transfer and conceal a $1,500,000 cashier's check from Citizens Bank of Texas in order to prevent the funds from being seized by the Government. Keele waived his right to an indictment and entered into a written agreement to plead guilty to the superseding information. The plea agreement set maximum sentencing exposure at 24 months and included restitution to the victims arising from “all relevant conduct” and was not limited to the conduct arising from the offense of conviction alone. The plea agreement also contained an appeal waiver which stated that Keele waived the right to appeal his conviction and sentence except in the case of a sentence in excess of the statutory maximum, an involuntary plea or appeal waiver, or ineffective assistance affecting the voluntariness of the plea or appeal waiver.

The presentence report (“PSR”) described a long term, complex conspiracy, perpetrated by Keele, Simpson, Michael Faulkner and sixteen other co-defendants, to defraud telecommunication companies of property and services and to defraud individual victims of money, property, and services. Five victim impact statements referenced in Keele's PSR contained losses totaling $3,691,102.70. However, according to the second, third and fourth superseding information, the aggregate loss of all victims of the conspiracy was estimated to be between $15,000,000 and $20,000,000.

The district court sentenced Keele to twenty-four months' imprisonment and ordered him to pay $3,691,102.70 in restitution to the victims under the Mandatory Victim Restitution Act (“MVRA”).¹ Keele filed the instant appeal.

DISCUSSION

A. Whether the Appeal Waiver Precludes Appeal of the Restitution Order

Keele maintains that the appeal waiver in his plea agreement does not encompass restitution. Keele argues that the waiver did not specifically mention restitution and further claims that the district court, in discussing the appeal waiver at rearraignment, did not specify that he was waiving his right to appeal any restitution order. On this basis, Keele asserts that the restitution order is reviewable despite the appeal waiver contained in his plea agreement. We disagree.

This court reviews de novo whether an appeal waiver bars an appeal. United States v. Baymon, 312 F.3d 725, 727 (5th Cir.2002).

To determine the validity of an appeal waiver, this court conducts “a two-step inquiry.” United States v. Bond, 414 F.3d 542, 544 (5th Cir.2005). Specifically, this court considers whether the waiver was knowing and voluntary and whether, under the plain language of the plea agreement, the waiver applies to the circumstances at issue. Id. In determining whether a waiver applies, this court employs ordinary principles of contract interpretation, construing waivers narrowly and against the Government. United States v. Palmer, 456 F.3d 484, 488 (5th Cir.2006).

A defendant may waive his right to appeal as part of a valid plea agreement if the waiver is knowing and voluntary. United States v. McKinney, 406 F.3d 744, 746 (5th Cir.2005). “A defendant must know that he had a right to appeal his sentence and that he was giving up that right.” United States v. Portillo, 18 F.3d 290, 292 (5th Cir.1994) (internal quotation marks and citation omitted). A waiver is both knowing and voluntary if the defendant indicates that he read and understood the agreement and the agreement contains an “explicit, unambiguous waiver of appeal.” McKinney, 406 F.3d at 746. District courts must ascertain that defendants understand provisions in plea agreements waiving the right to appeal. Fed.R.Crim.P. 11(b)(1)(N).

The written appeal waiver in Keele's plea agreement stated that he waived the right to appeal his conviction and sentence on direct appeal or on collateral review except in the case of a sentence in excess of the statutory maximum, an involuntary plea or appeal waiver, or ineffective assistance affecting the voluntariness of the plea or appeal waiver. Keele also signed a written provision at the end of the agreement affirming that he fully understood the plea agreement and entered into it knowingly and voluntarily. At rearraignment, the district court asked Keele whether he understood the plea agreement and the appeal waiver provision, and Keele answered affirmatively. Keele stated that his plea was voluntary and that he had voluntarily waived his right to appeal. Thus, we conclude that Keele's appeal waiver was knowing and voluntary. See McKinney, 406 F.3d at 746.

Whether a general appeal waiver bars a challenge to a restitution order is unsettled in this circuit, and other circuits have reached differing results, at least where restitution was not mentioned in the plea agreement. See United States v. Smith, 528 F.3d 423, 424–25 (8th Cir.2008) (declining to reach issue and comparing cases from other circuits); United States v. Lam, 233 F.3d 575, 2000 WL 1468731, at *1 & n. 2 (5th Cir.2000) (per curiam) (unpublished). In Smith, the defendant appealed an order of restitution on the basis that it was not supported by sufficient evidence. Smith, 528 F.3d at 423–24. The Government asserted that the defendant's challenge was barred by her appeal waiver. Id. at 424. This court noted that restitution is ordinarily considered a component of a sentence and that, in two unpublished opinions, the court had held that a general appeal waiver barred review of a restitution order. Id. at 424–25 (citing United States v. Hemler, 169 Fed.Appx. 897, 898 (5th Cir.2006); United States v. Glynn, 149 Fed.Appx. 322, 323 (5th Cir.2005)). However, in those prior cases, the plea agreements expressly stated that the defendant had agreed to pay restitution as determined by the district court. See Smith, 528 F.3d at 424. In Smith, by contrast, the plea agreement was silent regarding restitution, and the Rule 11 colloquy did not resolve whether restitution was part of the agreement. Id. However, because the appeal could easily be resolved on the merits, the Smith court declined to address “whether a general appeal waiver bars review of a restitution order when the plea agreement does not discuss restitution.” Id.

In Lam, this court held that an appeal waiver did not bar a challenge to restitution. Lam, 233 F.3d 575, at *1. There, the plea agreement stated that the defendant agreed to pay restitution and agreed to waive his right to appeal his sentence except for an upward departure. Id. However, the waiver did not mention restitution, the defendant was not admonished regarding the provisions of the MVRA, and the Government conceded that restitution was not contemplated as being included in the waiver. Id.

Keele's case, however, is distinguishable from Lam. In addition to restitution's being mentioned in Keele's plea agreement, the district court also informed Keele multiple times at sentencing and rearraignment that his sentence “includes restitution” arising from all “relevant conduct” and would not be limited to that arising from the offense of conviction. The district court admonished Keele that he “will be required to make full restitution ... because restitution is by statute mandatory in this case.” Moreover, Keele stated at sentencing, “[t]he restitution, I know you have the right to do that. You have said that. The only thing I ask you to consider is that at 58 years old it will be a burden that I cannot accomplish, and I know that. I ask you to think about that before you sentence me.” Keele also agreed that he understood that he was waiving his right to appeal his conviction and sentence with certain limited exceptions.

The written plea agreement also stated that restitution was mandatory under the law and that the extent of restitution ordered by the court may include “restitution arising from all relevant conduct, not limited to that arising from the offense of conviction alone[.]” Additionally, Keele's factual resume contains fourteen paragraphs of “relevant conduct,” which Keele admitted to be true, that exceeded the scope of the 18 U.S.C. § 2232(a) offense of which he was convicted.² Further, as the Government points out, Keele expressly waived his right to appeal his “sentence” or “seek any future reduction in his sentence” in his plea agreement. That same plea agreement defines “sentence” to include mandatory “restitution to victims.” Because the whole of this factual scenario greatly differs...