NOT RECOMMENDED FOR PUBLICATION File Name: 23a0029n.06
Case No. 22-3279
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Jan 13, 2023 DEBORAH S. HUNT, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE NORTHERN ) DISTRICT OF OHIO JOSHUA GLOWACKI, ) ) OPINION Defendant-Appellant. )
Before: BATCHELDER, STRANCH, and DAVIS, Circuit Judges.
DAVIS, Circuit Judge. Joshua Glowacki pleaded guilty to the receipt of visual depictions
of a minor engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). Prior to
his plea, Glowacki filed a motion to suppress evidence obtained in a search of his home, or
alternatively, for a Franks hearing. He now appeals from the district court’s denial of his motion
to suppress, arguing that the warrant to search his home was not supported by probable cause.
Glowacki also challenges the district court’s restitution order. Because we find that the warrant
was supported by probable cause, or at least executed in good faith, we AFFIRM the district
court’s denial of Glowacki’s motion to suppress, and DISMISS his restitution claims as waived
by a valid plea agreement. No. 22-3279, United States v. Glowacki
I. BACKGROUND
A. The Affidavit
In March 2021, a magistrate judge in the Northern District of Ohio issued a warrant to
search Glowacki’s residence. The warrant authorized law enforcement officers to search for
evidence and fruits of violations of: 18 U.S.C. § 2251 (sexual exploitation of children); 18 U.S.C.
§ 2252A(a)(2)(A) and (b)(1) (receipt and distribution of, conspiracy to receive and distribute, and
attempt to receive and distribute child pornography); and 18 U.S.C. § 2252A(a)(5)(B) and (b)(2)
(knowing possession, access, conspiracy to access, or attempted access with intent to view child
pornography). The following facts are undisputed and come from FBI Special Agent Monica
Hantz’s affidavit in support of the search warrant. At the time, Hantz had five years of experience
in the FBI and had received training pertaining to child pornography and child exploitation.
In October 2020, the FBI served a subpoena on Coinbase, a cryptocurrency exchange
platform, requesting records of bitcoin addresses associated with dark net sites that advertise Child
Sexual Abuse Material (CSAM). The affidavit describes the “dark net” as “a part of the deep web
that not only cannot be discovered through a traditional search engine, but also has been
intentionally hidden and is inaccessible through standard browsers and methods.” Dark net
marketplaces on the dark net allow for vendors to sell illicit (and occasionally legal) goods. The
affidavit further explains that items purchased through dark net vendors are typically paid for in
bitcoin—a virtual currency circulated over the internet. Bitcoin addresses are case-sensitive
strings of letters and numbers akin to bank account numbers, to and from which bitcoin can be
sent. Once agents received the information from Coinbase, they identified a bitcoin account
registered to Glowacki as sending two bitcoin payments on December 24, 2019, to a bitcoin
address (“BTC Address 1”) associated with a dark net website (the “Target URL”) that advertises
2 No. 22-3279, United States v. Glowacki
CSAM. The affidavit identified Glowacki as a registered sex offender in the state of Ohio who
had pleaded guilty to charges of pandering sexually oriented matter involving a minor in May
2019.
Open searches for information associated with the BTC Address 1 revealed that it had
previously been publicly reported on www.bitcoinabuse.com as follows: “TOR site advertising for
child exploitation videos. Below is the ad US $ 15 – After payment to the bitcoin address number:
15WK91Jq47uFASfBGwvY6SSv6Vc7tEgZfJ write the transaction number write [sic] to e-mail:
video-child@secmail.pro we will send you access.” In February 2020, Internet Watch Foundation
(IWF), a registered charity focused on “minimi[zing] the availability of online sexual abuse
content, specifically [CSAM],” also identified BTC Address 1 as involved in “child abuse
material.” Using blockchain analysis, investigators determined that the BTC Address 1 had
received 1.75 BTC (approximately $12,000), and all but 4% of the funds received in the wallet
associated with BTC Address 1 were sent to a virtual currency exchanger based in Russia.
In October 2020, investigators visited the Target URL and found images and videos
depicting prepubescent children engaged in sexual acts and an advertisement for “[a]ccess to 10 +
terabytes of child porn private site.” The affidavit disclosed that at the time of the investigators’
review, the Target URL listed a different bitcoin address (“BTC Address 2”) than the one utilized
by Glowacki. The Target URL directed users to send bitcoin payment to BTC Address 2 and
follow up with an email to child-video@secmail.pro containing the transaction ID for access.
Notably, in addition to the child-video@secmail.pro address, the Target URL also directed users
to video-child@secmail.pro – the same email address as the one included in the reported
advertisement listing BTC Address 1 that Glowacki had used. IWF also identified BTC Address
3 No. 22-3279, United States v. Glowacki
2 as involved in “child abuse material.” Further, BTC Address 2 was associated with the same
Russian-based currency exchanger as BTC Address 1.
On the strength of the affidavit, a magistrate judge issued a warrant to search Glowacki’s
residence and any computer, computer media, and mobile computing device located therein, and
to seize all evidence, fruits, and instrumentalities of the suspected crimes. During the resulting
search, officers seized several electronic items, including Glowacki’s cell phone, which contained
images classified as child exploitation and possible child pornography.
B. Procedural History
In April 2021, a federal grand jury returned a two-count indictment against Glowacki,
charging him with the receipt of visual depictions of real minors engaged in sexually explicit
conduct, 18 U.S.C. § 2252(a)(2) (Count 1), and possession of child pornography, 18 U.S.C.
§ 2252A(a)(5)(B) (Count 2). Glowacki moved to suppress the evidence seized in the search of his
home, or in the alternative, for a Franks hearing pursuant to Franks v. Delaware, 438 U.S. 154
(1978). He argued that the search warrant was not supported by probable cause because the
affidavit lacked conclusive evidence that he accessed, viewed, received, distributed, or produced
any child pornography material from the Target URL.
The district court determined that the search warrant affidavit was supported by probable
cause and that a Franks hearing was not warranted. Glowacki subsequently entered into a plea
agreement with the government and, in accordance with its terms, pleaded guilty to Count 1. In
the plea agreement, he broadly waived the right to appeal both his conviction and his sentence.
However, the agreement specifically preserved his right to appeal the denial of his motion to
suppress and for a Franks hearing, any punishment in excess of the statutory maximum or any
sentence exceeding the maximum of the range determined under the Sentencing Guidelines, and
4 No. 22-3279, United States v. Glowacki
claims of ineffective assistance of counsel or prosecutorial misconduct. The agreement further
stipulated that “[t]he Court may order Defendant to pay restitution as a condition of the sentence,
probation, and/or supervised release.”
After Glowacki executed the plea agreement and entered his guilty plea, but before
sentencing, a victim identified in one of the photographs that Glowacki possessed submitted a
victim impact statement and a restitution request under the pseudonym “Lily.” Pursuant to the
Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. § 2259, after
determining the full amount of a victim’s losses incurred or projected to be incurred as a proximate
result of the offenses, district courts are required to order a defendant to pay a victim restitution in
an amount reflecting the defendant’s relative role in causing the victim’s losses, but no less than
$3,000. 18 U.S.C. § 2259(b), (c)(2). Lily identified her full economic losses to total
$6,008,536.29, including medical costs, future counseling expenses, educational and vocational
counseling needs, and lost past and future earnings. She requested restitution from Glowacki in
the amount of $10,000.
At sentencing, Glowacki objected to the amount of the restitution request, arguing that
there was insufficient evidence in terms of proximate cause to justify the $10,000 amount pursuant
to Paroline v. United States, 572 U.S. 434, 449 (2014). Glowacki requested that the court impose
only the minimum restitution of $3,000. The court overruled his objection and ordered Glowacki
to pay Lily’s requested $10,000 restitution. It further sentenced him to the statutory minimum of
15 years’ imprisonment, followed by 15 years of supervised release. Glowacki now appeals both
the district court’s denial of his motion to suppress and the restitution order.
5 No. 22-3279, United States v. Glowacki
Because the search warrant was supported by probable cause, we AFFIRM the district
court’s denial of Glowacki’s motion to suppress. We DISMISS his restitution claim as waived by
his valid plea agreement.
II. DISCUSSION
A. Motion to Suppress
Glowacki argues that the warrant authorizing the search of his home was not supported by
probable cause because the statement that he sent bitcoin to a bitcoin address associated with a
child pornography site was not sufficient to support a reasonable inference that he possessed child
pornography. He further claims that the affidavit’s failure to state that he had viewed or
downloaded child pornography or accessed a child pornography website was fatal to a finding of
probable cause and good faith. The government maintains that the affidavit was sufficient alone
to establish probable cause, and that even if it was not, the good faith exception should prevent
suppression.
1. Standard of Review
The Fourth Amendment establishes that a search warrant may not issue without a finding
of probable cause. U.S. Const. amend. IV. Probable cause exists where “the facts and
circumstances are such that a reasonably prudent person would be warranted in believing that an
offense had been committed and that evidence thereof would be found on the premises to be
searched.” Peffer v. Stephens, 880 F.3d 256, 263 (6th Cir. 2018) (quoting Greene v. Reeves, 80
F.3d 1101, 1106 (6th Cir. 1996)). A finding of probable cause does not require certainty or a
preponderance of the evidence. Illinois v. Gates, 462 U.S. 213, 235, 238 (1983). Rather, the task
of the issuing magistrate is “simply to make a practical, common-sense decision whether, given
all the circumstances set forth in the affidavit before him . . . there is a fair probability that
6 No. 22-3279, United States v. Glowacki
contraband or evidence of a crime will be found in a particular place.” Id. at 238. While our
review of the district court’s “logic” is de novo, our review of probable cause itself is more
deferential. See United States v. Tagg, 886 F.3d 579, 586 (6th Cir. 2018). That is, “the court
reviewing a warrant does not write on a blank slate. A judicial officer who issues a warrant ‘should
be paid great deference.’” Id. (quoting Gates, 462 U.S. at 236). On review, we are tasked only
with ensuring that the magistrate had a “substantial basis for . . . concluding that probable cause
existed” based on the “totality of the circumstances.” Gates, 462 U.S. at 236, 238 (cleaned up).
We will uphold the denial of a motion to suppress “if the district court’s conclusion can be justified
for any reason.” United States v. Moorehead, 912 F.3d 963, 966 (6th Cir. 2019) (quoting United
States v. Pasquarille, 20 F.3d 682, 685 (6th Cir. 1994)).
To deter police misconduct, the exclusionary rule bars the introduction of evidence
obtained in violation of the Fourth Amendment. Warden v. Hayden, 387 U.S. 294, 304-05 (1967).
But even if the magistrate judge did not have a substantial basis for finding probable cause,
suppression is not appropriate where executing officers relied on the search warrant in good faith.
United States v. Leon, 468 U.S. 897, 922-23 (1984) (establishing the good-faith exception to the
exclusionary rule).
2. Probable Cause
In disputing probable cause, Glowacki faults the search warrant affidavit for failing to
establish that: (1) the Target URL received the bitcoin he sent or gave him access to the site, (2)
he subscribed or visited the Target URL, or (3) he downloaded, kept, or otherwise possessed
material from the Target URL. The government counters that requiring such information would
call for certainty in the probable cause analysis, where it has no place. As a practical matter, it is
not necessary to individually rebut Glowacki’s allegations of missing information since we judge
7 No. 22-3279, United States v. Glowacki
the adequacy of the affidavit based on “what it does contain, not on what it lacks, or on what a
critic might say should have been added.” United States v. Allen, 211 F.3d 970, 975 (6th Cir.
2000) (en banc).
We have previously held that evidence of a sex offender’s subscription to a child
pornography website, as demonstrated by payment through a financial account, combined with
evidence tying the offender to the place(s) to be searched, was sufficient to support probable cause.
See United States v. Frechette, 583 F.3d 374, 379-81 (6th Cir. 2009). The government argues that
the circumstances here are sufficiently analogous to those in Frechette to support the same
conclusion. In Frechette, we reversed the district court’s suppression of evidence, finding
sufficient probable cause to support the underlying search where the warrant affidavit definitively
established that the defendant, a registered sex offender, paid $79.95, the exact amount required
for a one-month subscription, to a commercial child pornography site using an email address and
PayPal account connected to his name and residence. Id. at 377, 379-80. The Frechette court
explained that “if someone spends $80 for something, it is highly likely that person will use it—
whether it is a tie, a video game, or a subscription to a pornographic website.” 583 F.3d at 380.
The decision cited “the fact[s] that the defendant had viewed the splash page that contained
pornographic images of children, set up an account with PayPal on the same day, and transferred
the exact amount of funds needed from his debit card to the PayPal account to pay for the
subscription” as making it “all the more likely he would access what he paid to view.” Id. at 381.
The government also cites United States v. Wagers for the similar proposition that
“evidence that a person has visited or subscribed to websites containing child pornography
supports the conclusion that he has likely downloaded, kept, and otherwise possessed the
material.” 452 F.3d 534, 540 (6th Cir. 2006). In Wagers, we found probable cause to support a
8 No. 22-3279, United States v. Glowacki
search warrant where records obtained from child pornography websites’ billing services revealed
that the defendant purchased subscriptions for one to two months of membership to multiple
websites, in combination with his prior child pornography convictions. 452 F.3d at 536-37. The
court relied on facts showing that the defendant subscribed to the offending sites to make the
reasonable inference that he took additional, incriminating steps. Id. at 540; see also United States
v. Paull, 551 F.3d 516, 519, 522-23 (6th Cir. 2009) (finding probable cause where affidavit detailed
the defendant’s subscriptions to websites advertising child pornography); Tagg, 886 F.3d at 584,
587-88 (finding that affidavit stating that defendant accessed child pornography website and
clicked on over 160 hyperlinks advertising child pornography established probable cause despite
not stating he viewed or accessed any illegal files).
Without question, the affidavit here contains less direct evidence. For instance, there is no
direct evidence of a “subscription” to a child pornography website or reference to the specific
amount that Glowacki paid to BTC Address 1. Instead, the affidavit lays out circumstantial
evidence that requires inferences that Glowacki purchased access to, then accessed child
pornography material. There is direct evidence that Glowacki was convicted of pandering sexually
oriented material involving a minor; that he is a registered sex offender; that approximately seven
months after his convictions, he submitted cryptocurrency payments via computer to a bitcoin
address that has received about $12,000 using a virtual currency exchanger that does not respond
to legal process; and that he was linked to the place to be searched. There is circumstantial
evidence that BTC Address 1 to which he sent his payments was reported by a bitcoin abuse
website as a “TOR site advertising for child exploitation videos” and provided instructions on how
to access child pornography material; that a second internet safety organization separately
identified BTC Address 1 as an address involving child abuse material; that BTC Address 1 is
9 No. 22-3279, United States v. Glowacki
associated with a URL on the dark net, which, when visited by investigators, revealed over a dozen
images depicting apparent child pornography material; and that based on information from the
aforementioned bitcoin abuse website, the URL provided the same email contact information that
was in a dark net advertisement that listed BTC Address 1, to which Glowacki sent his payment.
The district court found that the totality of circumstances set forth in the affidavit supported
the magistrate judge’s probable cause finding, and we do too. We have previously described the
“dark web”1 as “a sophisticated, anonymous internet network used both by criminals and by other
individuals who, for whatever reason, do not want to be identified.” Tagg, 886 F.3d at 582. As
noted in the search warrant affidavit, cryptocurrency, which allows for the anonymous exchange
of currency, is the preferred method of payment. Frechette, Wagers, and Paull each involved
conduct that occurred over twelve years ago, a time when cryptocurrency was in its infancy and
few had heard of dark net marketplaces. Thus, it is not so surprising that the evidence set forth in
those cases included direct evidence of child pornography subscriptions. Since then, the internet
has evolved, leaving many transactions either partially or totally untraceable. But the reasoning
in Wagers and Frechette that “evidence that a person has visited or subscribed to websites
containing child pornography supports the conclusion that he has likely downloaded, kept, and
otherwise possessed the material” remains apt here. Wagers, 452 F.3d at 540; see also Frechette,
583 F.3d at 379. While the evidence of Glowacki’s payment for access is less direct than the
evidence of subscriptions in the noted decisions, it has probative value. And to the extent that
Glowacki seeks to distinguish his situation based on the absence of a “subscription” in the
1 The terms “dark net” and “dark web” may be used interchangeably. See, e.g., United States v. Sterlingov, 573 F. Supp. 3d 28, 31 (D.D.C. 2021) (using the terms “darknet” and “dark web” interchangeably; Dep’t of Just., Commentary to Manual § [9-100.000A] (2018) (same); Dep’t of Just., Off. of Pub. Affs., Press Release: AlphaBay, the Largest Online ‘Dark Market,’ Shut Down (July 20, 2017) (same), available at https://www.justice.gov/opa/pr/alphabay-largest-online-dark-market-shut-down.
10 No. 22-3279, United States v. Glowacki
traditional sense,2 his efforts are unavailing. The advertisements associated with the Target URL
did not specify how long a user would maintain access after payment. But even if Glowacki’s
payments were for one-time access rather than for a period of ongoing or recurring access as
denoted by a subscription, that distinction is of no moment, because the salient point of Frechette,
Wagers, and Paull is that once access is granted, the purchaser is likely to claim (i.e. come into
possession of) what was purchased, and Glowacki concedes that staleness is no issue here.
Likewise, Glowacki’s assertion that BTC Address 1 was associated with two other
pornography websites does not advance his cause. As the district court pointed out, these
additional sites were also marked as containing child pornography—an unhelpful fact for
Glowacki to highlight. But even if BTC Address 1 could have been associated with legal purposes,
that argument has little traction as we have made clear that “probable cause ‘does not require
officers to rule out a suspect’s innocent explanation for suspicious facts.’” Tagg, 886 F.3d at 586
(quoting District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018)). That is, we do not assess
“whether particular conduct is ‘innocent’ or ‘guilty,’” but rather “the degree of suspicion that
attaches to particular types of noncriminal acts.” Wesby, 138 S. Ct. at 588 (quoting Gates, 462
U.S. at 244 n.13). To the extent that BTC Address 1 might have been associated with alternative,
innocent websites or services, Glowacki’s prior criminal history involving child pornography was
properly considered in evaluating an already suspicious exchange. Wagers, 452 F.3d at 541 (“[A]
‘person of reasonable caution’ would take into account predilections revealed by past crimes or
convictions as part of the inquiry into probable cause.”) (internal quotations and citations omitted);
2 Merriam-Webster defines “subscription” as “an arrangement for providing, receiving, or making use of something of a continuing or periodic nature especially on a prepayment plan: such as a purchase by prepayment for a certain number of regular deliveries of something (such as issues of a periodical) or for a certain period of access to or use of something (such as an online service).” Subscription, Merriam- Webster, https://www.merriam-webster.com/dictionary/subscription (last visited January 2, 2023).
11 No. 22-3279, United States v. Glowacki
see R. 37-3 ¶ 23 (Glowacki previously pleaded guilty to pandering sexually oriented matter
involving a minor). Having submitted his payment, and considering the connection between the
payment address and the illicit URL identified in the search warrant affidavit, it was reasonable to
conclude that he likely received what he paid for – child pornography materials. The parts of the
transaction that may have been lost to the secrecy and protection of the dark net do not undermine
this finding.
3. Good Faith Exception
Even if we were to conclude that the affidavit fell short, suppression would not be
warranted here because the agents acted in good faith in executing the warrant. The Supreme
Court in United States v. Leon held that the exclusionary rule will not apply even where a warrant
is later deemed invalid if the search was executed by officers acting in “objectively reasonable
reliance” on a warrant issued by a detached and neutral magistrate. 468 U.S. at 922. But Leon
outlined four exceptions where suppression is still appropriate: when (1) the magistrate judge was
misled by information in the affidavit and the affiant knew the information was false or recklessly
disregarded the truth; (2) the magistrate judge abandoned their detached neutral role; (3) the
warrant was so lacking in any indicia of probable cause that official belief in its existence is
unreasonable; or (4) the warrant was so facially deficient that it could not reasonably be presumed
valid. Id. at 923. Glowacki asserts that the third exception applies here. Under this exception, we
inquire whether a “reasonably well trained officer” would have “no reasonable grounds for
believing that the warrant was properly issued.” Id. Affidavits falling within this exception have
come to be known as “bare-bones affidavits,” i.e., ones which “contain[] only ‘suspicions, beliefs,
or conclusions, without providing some underlying factual circumstances regarding veracity,
reliability, and basis of knowledge.’” United States v. Laughton, 409 F.3d 744, 748 (6th Cir. 2005)
12 No. 22-3279, United States v. Glowacki
(quoting United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996)). Stated otherwise, a bare-
bones affidavit is a conclusory affidavit that “states only the affiant’s belief that probable cause
existed.” United States v. Finch, 998 F.2d 349, 352 (6th Cir. 1993) (cleaned up).
Glowacki contends that “[n]o reasonable officer could rely on the affidavit here because of
the missing links—no subscription to the illicit website, no visiting the site, no downloading from
the site.” Appellant’s Br. at 12-13. He cites only our decisions in Paull and Wagers as instances
in which we have required more to uphold a search warrant. But those cases do not offer
persuasive evidence in the context of a good-faith analysis; both cases concerned findings of
probable cause. The standard required for a finding of good faith is less demanding than that of
probable cause. United States v. Carpenter, 360 F.3d 591, 595 (6th Cir. 2004) (en banc) (“If a
lack of a substantial basis also prevented application of the Leon objective good faith exception,
the exception would be devoid of substance.”); see also United States v. Brown, 828 F.3d 375,
385-86 (6th Cir. 2016) (“Although the good-faith standard is less demanding than the standard for
probable cause, the affidavit still must draw some plausible connection to the residence.”). The
facts presented in the affidavit here—the affiant’s training and experience, the nature of the dark
net and cryptocurrency, Glowacki’s recent prior conviction and status as a sex offender, and his
payment to a bitcoin address listed in an advertisement for access to child exploitation videos on
the dark net—were not “so vague as to be conclusory or meaningless.” Carpenter, 360 F.3d at
596.
As such, the affidavit here fits comfortably within the good faith exception, and would still
preclude the suppression of evidence obtained during execution of the search warrant.
13 No. 22-3279, United States v. Glowacki
B. Restitution
Glowacki next claims that the district court’s imposition of $10,000 in restitution was
improper. The government submits that, as a threshold matter, Glowacki waived any challenge to
his restitution claim in the valid appellate waiver within his plea agreement. We agree.
This court reviews de novo the question of whether a defendant waived his right to appeal
his sentence in a valid plea agreement. United States v. Stubbs, 279 F.3d 402, 411 (6th Cir. 2002).
“[A] defendant in a criminal case may waive any right, even a constitutional right, by means of a
plea agreement.” United States v. Winans, 748 F.3d 268, 270 (6th Cir. 2014) (alteration in original)
(quoting United States v. McGilvery, 403 F.3d 361, 362 (6th Cir. 2005)). “In deciding the scope
of the appellate waiver, we use ordinary contract law principles and construe any ambiguities
against the government.” United States v. Fowler, 956 F.3d 431, 436 (6th Cir. 2020) (citing United
States v. Bowman, 634 F.3d 357, 360 (6th Cir. 2011)). A valid waiver must be both knowing and
voluntary. Winans, 748 F.3d at 270 (citing United States v. Fleming, 239 F.3d 761, 764 (6th Cir.
2001)). In arguing that this court should reach the merits of his restitution claim, Glowacki asserts
that his appeal of the restitution order is outside of the scope of his waiver and that his agreement
to waive claims regarding restitution was not knowing.
1. Scope of Waiver
The threshold question is whether Glowacki’s restitution claim on appeal was
contemplated by his plea agreement. See Fowler, 956 F.3d at 436. The substance of his claim on
appeal is that (1) the district court did not appropriately assess his role in causing Lily’s losses,
and (2) the determination was only appropriate for a jury.
Under the terms of Glowacki’s plea agreement, he broadly waived his right to challenge
his conviction or sentence on appeal. The agreement expressly states that Glowacki was advised
14 No. 22-3279, United States v. Glowacki
by counsel of his rights to appeal the conviction or sentence in his case, including the appeal rights
conferred by 18 U.S.C. § 3742. In relevant part, the law provides that “[a] defendant may file a
notice of appeal in the district court for review of an otherwise final sentence” if that sentence:
(1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; or (3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline range; or (4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
18 U.S.C. § 3472(a). Glowacki “expressly and voluntarily waive[d] those rights,” preserving only
the right to appeal (1) the district court’s denial of his motion to suppress or for a Franks hearing;
(2) any punishment in the excess of the statutory maximum or any sentence to the extent it exceeds
the maximum of the range determined by the Sentencing Guidelines; and (3) claims of ineffective
assistance of counsel or prosecutorial misconduct. In a section outlining maximum penalties and
consequences of pleading guilty, the agreement specified that “[t]he Court may order Defendant
to pay restitution as a condition of the sentence, probation, and/or supervised release.”
It is undisputed that “restitution is a part of [a defendant’s] sentence.” Winans, 748 F.3d
at 271. And “we have repeatedly read a waiver of the right to appeal a sentence as including a
restitution order.” United States. v. Riccardi, 989 F.3d 476, 489 (6th Cir. 2021) (collecting cases).
In Riccardi, this court held that a defendant’s waiver of the right to appeal her conviction and
sentence foreclosed a challenge to the court’s calculation of restitution. Id. As here, the Riccardi
waiver broadly covered the right to appeal any sentence, with only specific narrow exceptions,
including (1) sentences exceeding the maximum recommended under the Sentencing Guidelines,
15 No. 22-3279, United States v. Glowacki
or (2) in excess of the statutory maximum. 989 F.3d at 489-90. We explained that restitution did
not fall within the first waiver exception because “restitution is not ‘imprisonment,’” and “the
guidelines do not provide restitution ‘ranges.’” Id. at 490 (quoting United States v. Sharp, 442
F.3d 946, 952 (6th Cir. 2006)). As to the second exception, we emphasized that it is well
established in this circuit that restitution does not affect any statutory maximum penalty. Id.
(quoting United States v. Bradley, 969 F.3d 585, 591-92 (6th Cir. 2020)); United States v. Sosebee,
419 F.3d 451, 461 (6th Cir. 2005); Sharp, 442 F.3d at 952.
Because restitution is a part of a sentence and is not contemplated within the Sentencing
Guidelines or implicated in statutory maximum penalties, Glowacki’s restitution claim fell within
the scope of his broad waiver.
2. Knowing Waiver
Glowacki argues, alternatively, that because the agreement failed to include a range of
restitution, he was not aware of the attendant consequences, making his waiver unknowing and its
enforcement unfair. An appellate waiver “is effective only if understood by the defendant.” Sharp,
442 F.3d at 949. We evaluate the knowing and voluntary nature of a waiver within a plea
agreement “by examining the district court record, particularly the written plea agreement and the
colloquy at the change of plea hearing.” United States v. Ferguson, 669 F.3d 756, 765 (6th Cir.
2012).
The agreement here clearly contemplated the court’s order of restitution as a consequence
of pleading guilty. Glowacki does not contend that the applicable language was capable of any
alternative interpretation. The fact that a range was not specified does not render the terms any
less clear, and if Glowacki wished to reserve his right to appeal the restitution order, he was free
to negotiate those terms prior to entering the agreement. See United States v. Rafidi, 730 F. App’x
16 No. 22-3279, United States v. Glowacki
338, 342 (6th Cir. 2018). Moreover, “[t]he wisdom of the bargain struck is not for us to judge; our
task is to enforce the terms of agreements freely and knowingly entered into.” United States v.
Grundy, 844 F.3d 613, 617 (6th Cir. 2016) (rejecting defendant’s argument that “his appeal waiver
should not be enforced on policy grounds because it would ‘subject him[] to being sentenced
entirely at the whim of the district court.’”).
Glowacki’s agreement laid out the narrow circumstances permitting appeal. He initialed
each page of the agreement. At the plea colloquy the court walked through the agreement by
paragraph and reiterated to Glowacki that “there may be restitution depending on the victims. If
there [are] any victims identified who are pictured in any images you may have viewed, then
restitution may be ordered by the Court.” Glowacki confirmed that he understood. The court then
explained that under the agreement, Glowacki was waiving his right to appeal or challenge his
sentence of conviction in any way and listed each of the stipulated exceptions to that waiver.
Glowacki again confirmed his understanding. Throughout the colloquy, the court asked Glowacki
if he had any questions. He had none. The district court thus found Glowacki fully competent and
capable of entering an informed plea, and that his plea was knowing and voluntary. We agree and
hold that Glowacki’s waiver in his plea agreement is valid and enforceable, and therefore bars
consideration of the district court’s restitution order.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of Glowacki’s motion
to suppress and DISMISS his challenge to the restitution order.