United States v. Gerald Edwards

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 10, 2020
• Docket: 19-30092
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-30092

Plaintiff-Appellee, D.C. No. 3:08-cr-00092-JWS-1

v. MEMORANDUM* GERALD EDWARDS,

Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska John W. Sedwick, District Judge, Presiding

Submitted March 3, 2020**

Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.

Gerald Edwards appeals pro se from the district court’s order denying his

“Motion to Stop Collection of Restitution.” We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

As an initial matter, we decline to enforce the appeal waiver in Edwards’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). plea agreement, as the government urges, because the waiver does not clearly

apply to an appeal of the restitution order. See United States v. Charles, 581 F.3d

927, 931 (9th Cir. 2009).

Edwards argues that the district court erred by failing to order the

government to stop collecting against his 2009 restitution judgment. Edwards did

not challenge the validity of his restitution order on direct appeal. Even assuming

he could challenge it now, we conclude that he is not entitled to relief because he

has not shown that collection of restitution, in the amount to which he stipulated at

sentencing, would result in “a complete miscarriage of justice.” United States v.

Gianelli, 543 F.3d 1178, 1184-85 (9th Cir. 2008).

We do not reach Edwards’s remaining arguments because they were not

specifically and distinctly raised and argued in the district court or his opening

brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

This disposition is without prejudice to Edwards moving in the district court,

pursuant to 18 U.S.C. § 3664(k), for an adjustment to the restitution payment

schedule based on a material change in his economic circumstance.

Edwards’s motion to file a late reply brief is granted. The Clerk will file the

reply brief received at Docket Entry No. 28.

AFFIRMED.

2 19-30092