United States v. Shaw

446 F. App'x 357

• Court: Court of Appeals for the Second Circuit
• Decided: November 16, 2011
• Docket: 10-2975-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

Defendant-Appellant Steven F. Shaw appeals from a judgment entered by the district court (McAvoy, J.), convicting him, following a guilty plea, of one count of making false statements in a loan application (18 U.S.C. §§ 1014, 2), one count of attempted tax evasion for the 2005 calendar year (26 U.S.C. § 7201), and one count of embezzlement from a health care benefit program (18 U.S.C. § 669). The district court sentenced Shaw principally to thirty-six months’ imprisonment on each count, to run concurrently, and with respect to the tax evasion count, the court ordered restitution in the amount of $122,530, which represented the taxes Shaw owed for calendar years 2004, 2005, and 2006. Shaw appeals only the order of restitution imposed with respect to his conviction under 26 U.S.C. § 7201. We assume the parties’ familiarity with the underlying facts, procedural history of the case, and issues on appeal.

We ordinarily review a district court’s restitution order for abuse of discretion, but because this issue was raised for the first time on appeal, we instead review for plain error. See, e.g., United States v. Middlemiss, 217 F.3d 112, 121 (2d Cir.2000). “[Ijmproperly ordered restitution constitutes an illegal sentence amounting to plain error.” United States v. Fiore, 381 F.3d 89, 98 (2d Cir.2004) (internal quotation marks omitted). It is well settled that a district court may not order restitution unless authorized by statute. See United States v. Pescatore, 637 F.3d 128, 139 (2d Cir.2011); United States v. Helmsley, 941 F.2d 71, 101 (2d Cir.1991). The two principal federal restitution statutes, 18 U.S.C. § 3663 (Victim and Witness Protection Act, “VWPA”) and 18 U.S.C. § 3663A (Mandatory Victims Restitution Act, “MVRA”), do not directly permit restitution for violations of 26 U.S.C. § 7201 in the absence of a plea agreement. See 18 U.S.C. § 3663(a)(1)(A) (enumerating covered offenses); id. § 3663A(c)(1) (same); see also United States v. Bok, 156 F.3d 157, 166 (2d Cir.1998) (recognizing that 26 U.S.C. § 7201 is not one of the offenses for which 18 U.S.C. § 3663 au thorizes restitution). Nevertheless, a district court “may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement.” 18 U.S.C. § 3663(a)(3); see also 18 U.S.C. § 3663A(a)(3). In United States v. Gottesman, 122 F.3d 150 (2d Cir.1997), we interpreted this section to mean: (1) that a court “can order restitution only in an amount not to exceed that agreed upon by the parties,” and (2) that a court “can order restitution only if the parties agreed that a court may do so.” Id. at 152 (emphasis in original). In Gottesman, the plea agreement provided that Gottesman would “pay past taxes due and owing ... on such terms and conditions as will be agreed upon between [him] and the IRS.” Id. (first alteration in original). Based on those terms, we held that “[w]hile the government certainly contemplated that Gottesman would make tax payments, it was also apparent that the terms of a payment were yet to be negotiated by Gottesman and the IRS — not imposed by court order.” Id. Thus, because “[cjourt-ordered restitution ... was not part of the bargain,” id., we vacated the district court’s restitution order, id. at 153.

Shaw contends that, like in Gottes-man, the terms of his plea agreement did not authorize the district court to impose restitution for his conviction under 26 U.S.C. § 7201. We disagree. Shaw’s plea agreement expressly obligated him to “pay all taxes, penalties, and interest ultimately determined to be due and owing to the United States, as directed by the Court.” Gov’t Appendix at 17 (emphasis added). By its plain language, therefore, and unlike in Gottesman, the plea agreement explicitly contemplated that the district court would order Shaw to pay all taxes owed to the United States. The district court’s order imposing restitution was thus consistent with both the plea agreement and 18 U.S.C. § 3663(a)(3).

Additionally, Shaw asserts that even if the court was authorized to order restitution for the taxes he failed to pay during the 2005 calendar year, it erred by including in its order taxes owed for the 2004 and 2006 calendar years, as those were not part of the basis for his conviction under 26 U.S.C. § 7201. Shaw, however, fails to appreciate the sentencing court’s authority under 18 U.S.C. § 3663(a)(3). Although a district court’s restitution order ordinarily is limited by the loss charged in the count of conviction, see, e.g., Hughey v. United States, 495 U.S. 411, 420, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), the order may exceed that amount to the extent agreed upon by the parties in the plea agreement, see United States v. Silkowski, 32 F.3d 682, 688-89 (2d Cir.1994) (recognizing that 18 U.S.C. § 3663(a)(3) “clarified] the scope of Hu-ghey as allowing restitution beyond the offense of conviction when the defendant agrees to such in a plea agreement” (internal quotation marks omitted)). Here, Shaw agreed to “provide timely, full, complete and accurate information to the Internal Revenue Service for the calendar years 2004 through 2006 and fully cooperate in the determination and payment of any income taxes, penalties, and interest that may be due and owing to the United States for those years.” (emphasis added). Thus, while there is no question that Shaw’s conviction under 26 U.S.C. § 7201 was based solely on his non-payment of taxes for the 2005 calendar year, he expressly agreed to pay restitution for any income taxes owed for the calendar years 2004, 2005, and 2006. His challenge is unavailing.

The judgment of the district court is AFFIRMED.