United States v. Brandon Harris

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 19, 2018
• Docket: 17-14852
• Status: Unpublished

Opinion

Case: 17-14852 Date Filed: 09/19/2018 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14852 Non-Argument Calendar ________________________

D.C. Docket No. 5:15-cr-00040-MTT-CHW-10

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRANDON HARRIS, a.k.a. Boo,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Georgia ________________________

(September 19, 2018)

Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM: Case: 17-14852 Date Filed: 09/19/2018 Page: 2 of 5

After pleading guilty, Brandon Harris was convicted of one count of

misprision of felony, in violation of 18 U.S.C. § 4, for concealing from law

enforcement his knowledge of the theft of firearms from a sporting-goods store.

At sentencing, the district court ordered Harris to pay the sporting-goods store and

its insurer a total of nearly $25,000 for the stolen firearms.

Harris argues on appeal that his guilty plea was unknowing and involuntary

because he was unaware, until sentencing, that he would be required to pay

restitution at all or in the amounts eventually ordered. And he asserts that the

government breached the terms of the plea agreement by seeking restitution at

sentencing. He desires either to excise the restitution order or to withdraw his

guilty plea altogether.

Harris suggests that our review is for plain error, which we apply to forfeited

claims not properly raised below. But plain-error review is not appropriate where,

as here, a defendant has waived the issues he raises on appeal. See United States v.

Lewis, 492 F.3d 1219, 1221 (11th Cir. 2007) (“[W]hile forfeited claims are

reviewed under [Fed. R. Civ. P.] 52(b) for plain error, waived claims are not.”).

“Whereas forfeiture is the failure to make the timely assertion of a right,

waiver is the intentional relinquishment or abandonment of a known right.” United

States v. Olano, 507 U.S. 725, 733 (1993) (quotation marks omitted). For instance,

we have held that a defendant’s affirmative, voluntary, and knowing withdrawal of

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a sentencing objection waives review of such objection on appeal, even for plain

error. United States v. Horsfall, 552 F.3d 1275, 1283–84 (11th Cir. 2008); United

States v. Masters, 118 F.3d 1524, 1525–26 (11th Cir. 1997). Similarly, under the

doctrine of “invited error,” we have held that a party who induces or invites the

district court into making an error is precluded from contesting the error on appeal.

United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006). This doctrine stems

from the common-sense notion that a party who invites the trial court to commit an

error cannot later cry foul on appeal. United States v. Brannan, 562 F.3d 1300,

1306 (11th Cir. 2009).

Here, Harris waived his challenges to the validity of his guilty plea and, with

it, to the restitution order. At sentencing, the district court offered to allow him to

withdraw his guilty plea based on his assertions that he was unaware that

restitution would be imposed as part of his sentence. See Doc. 324 at 18 (“I will let

you withdraw your guilty plea if that’s what you want to do.”). In other words, the

court offered Harris the very relief he seeks on appeal.

But Harris declined the district court’s offer with full knowledge of what

that entailed. Instead, he advised the court, first through counsel and then

personally, that he understood restitution was part of his guilty plea, he did not

wish to withdraw his guilty plea, and he was ready to finish sentencing and for the

court to award restitution as outlined in the presentence investigation report.

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Defense counsel then advised the court that, in counsel’s view, Harris’s decision to

proceed with sentencing, and to have the court order restitution, was knowing and

voluntary. We agree. And only after the court received Harris’s personal

assurance about these matters did it finish the hearing and order restitution.

Harris’s actions constitute waiver. Even assuming that the district court

erred during the plea colloquy, Harris knowingly and voluntarily refused to

withdraw his guilty plea and, instead, reaffirmed it with the knowledge that the

court would order him to pay $23,194 to the insurance company and $1,088 to the

sporting-goods store. By expressly telling the court to move forward with

sentencing and to impose restitution, with full knowledge of what that entailed,

Harris waived review, even for plain error, of any challenge he could have made to

voluntariness of his guilty plea based on his alleged lack of knowledge of

restitution. Cf. Masters, 118 F.3d at 1526 (“The plain error doctrine is inapplicable

in a situation such as this—where the defendant fully comprehends the error the

court is going to commit and nonetheless agrees to be bound by it.”).

Likewise, Harris cannot now argue that the plea agreement barred the

government from seeking restitution because he expressly agreed at sentencing that

restitution could be awarded as part of his plea. See Brannan, 562 F.3d at 1306. In

any case, the government breached no obligation in the plea agreement, because

nothing in the plea agreement prohibited the government from seeking restitution

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or a particular amount of restitution. To the contrary, Harris acknowledged in the

plea agreement that restitution could be awarded to any victims, even if specific

details were lacking.

For these reasons, we affirm Harris’s conviction and sentence.

AFFIRMED.