United States v. Williams

10 F.4th 965

Opinion

Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS August 23, 2021 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-1229

ALAN ALONZO WILLIAMS,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15-CR-00395-REB-1) _________________________________

Beale Tejada of Crane & Tejada, P.C., Denver, Colorado (Keith Bradley and Corey McGehee of Squire Patton Boggs LLP, Denver, Colorado and Phoenix, Arizona on the briefs), for Defendant-Appellant.

Elizabeth S. Ford Milani, Assistant United States Attorney (Jason Dunn, United States Attorney, and Paul Farley, Assistant United States Attorney, on the brief), Denver, Colorado, for Plaintiff-Appellee. _________________________________

Before TYMKOVICH, Chief Judge, BALDOCK, and PHILLIPS, Circuit Judges. _________________________________

PHILLIPS, Circuit Judge. _________________________________

Alan Williams pleaded guilty to a single count of bank fraud under 18 U.S.C.

§ 1344 and stipulated to restitution tied to that count and two other soon-to-be-dismissed

bank-fraud counts. The government got its conviction, and Williams limited his Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 2

sentencing exposure and possible future charges. Now Williams steps back from his

bargain, seeking to keep what benefits him (his favorable plea deal) while contesting the

very restitution he stipulated was owed. And though he didn’t raise the issue below, he

now contests the district court’s apportionment of that total restitution between WebBank

and Wells Fargo Bank, as recommended by the Presentence Report (PSR).

To raise these challenges, Williams must first overcome the appeal waiver

included in his Plea Agreement. We conclude that the appeal waiver does not bar his

total-restitution challenge. In this circumstance, the Plea Agreement allows Williams to

appeal the apportionment of the total restitution and the substantive reasonableness of his

prison sentence as well. Addressing the merits of Williams’s challenges, we affirm.

BACKGROUND

The government charged Williams with a scheme that encompassed four bank-

fraud counts, which were based on two loans and an attempted loan from WebBank.

Though Williams pleaded guilty to just the first count, in the next section, we review the

facts underlying Williams’s entire bank-fraud scheme as charged in the Indictment, as

memorialized in the Plea Agreement, and as set out without objection in the PSR.

I. Factual Background

Williams co-owned and operated his family’s vending-machine business,

Williams Vending Company, Inc. (WVC). The business sold, leased, operated, and

repaired vending machines. Because Williams was a convicted felon and still on parole,

he was ineligible to obtain bank loans, which he desired mostly for his personal use.

Determined to obtain a loan, he recruited a part-time employee of WVC, described by the

2 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 3

district court as Ms. X, to participate in fraudulently obtaining loans purportedly for

WVC. He scripted her role as being the president and sole owner of WVC. In enticing

Ms. X into his scheme, Williams knowingly exploited her need for money to feed a

crack-cocaine addiction.

Williams’s bank-fraud preparations began a year before he first applied for a loan

from WebBank. In November 2006, he filed documents with the Colorado Secretary of

State that falsely identified Ms. X as WVC’s owner. In these filings, he claimed that Ms.

X had invested significantly in WVC and managed the company for years. Then in

January 2007, he caused Ms. X to fraudulently obtain a $900,000 loan to purchase a

residence in Denver, Colorado, at which she neither resided nor intended to reside. And

in May 2007, he opened three WVC bank accounts over which Ms. X had “sole signature

authority,” though Williams in fact controlled the accounts. R. vol. 4 at 268.

With this foundation for the bank-fraud scheme in place, in late 2007, Williams

caused Ms. X to fraudulently apply to WebBank for an $800,000 Small Business

Administration loan. He had her act as the applicant and personal guarantor for the loan.

In addition, he had her falsely claim to be WVC’s president and sole owner, to have

“years of management experience” at WVC and elsewhere, to earn a substantial salary at

WVC, to have “substantial assets,” and to reside at the mentioned Denver residence. Id.

at 269. He also provided various documents to WebBank, signed or purportedly signed

by Ms. X. And he further falsely represented that WVC would use the loan funds to

fulfill certain government contracts, to pay existing debt, and for working capital. In

3 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 4

support of these representations, he provided a fraudulent vending contract with Peterson

Air Force Base and a fraudulent purchase order with Ross Vending.

In December 2007 and January 2008, WebBank approved the loan, issuing eleven

checks payable jointly to WVC and a named creditor of WVC. The amount ultimately

disbursed was $787,574.58. Though WebBank imposed a condition on the loan that the

co-payee creditors sign the checks, none did so. Instead, Williams fraudulently endorsed

the checks and deposited them in a WVC bank account without paying any creditors in

full as the loan required. He spent the loan proceeds mostly on himself and not for the

promised business purposes.

But Williams wanted more. In April 2008, WebBank approved a second loan, this

for $300,000, with Ms. X again acting as the applicant and personal guarantor. This time,

Williams falsely represented that WVC needed to purchase vending machines and trucks

to serve three major apartment complexes. As proof, he provided a fraudulent vending

contract with a property-management company and a fraudulent purchase order for

vending machines. In May 2008, WebBank wired the loan proceeds to a WVC account.

Williams again mostly spent the money on himself, including the purchase of two new

Mercedes Benz cars.

Still unsatisfied, a couple of months later, Williams went back to WebBank for

more money. In June 2008, WebBank lent another $60,000 on the second loan, for a total

amount disbursed of $359,253.70. When applying this time, using Ms. X as before,

Williams fraudulently represented that WVC needed to purchase service trucks. In

support, he submitted fake invoices from a truck vendor. WebBank issued a check jointly

4 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 5

payable to WVC and the vendor. But again, Williams fraudulently endorsed the check

and then deposited it in a WVC account he could access. As before, he did not use the

loan proceeds for WVC purposes.

And a couple of months later, Williams tried for even more. In August 2008,

WebBank denied a last request from him for a third, $550,000 loan (though not because

WebBank had yet uncovered the fraud). To support this request, Williams again used

Ms. X as before and falsely stated that WVC needed to purchase equipment so that it

could qualify to be Denver public schools’ exclusive vending-machine servicer. Among

the application documents, he provided additional fraudulent documents, seeking to lead

WebBank into believing that WVC had reduced its outstanding liabilities.

In January 2009, WebBank discovered the fraud. At this time, the amounts

disbursed on the $800,000 and $360,000 loans remained unpaid, meaning that the

principal unpaid balances on the loans were $787,574.58 and $359,253.70, respectively.

Together, the balances totaled $1,146,828.28.

II. Procedural Background

Based on this conduct, the government indicted Williams on four counts of bank

fraud under 18 U.S.C. §§ 1344 and 2(b). Williams pleaded guilty to Count One, which

related to the $800,000 loan, and the government successfully moved to dismiss the

remaining counts. The dismissed counts related to the $300,000 loan, the $60,000

modification to it, and the $550,000 attempted loan. In the Plea Agreement, the parties

stipulated to a total amount of restitution of $1,146,828.28 (the unpaid principal on

the two loans). In doing so, the parties referenced the operative statute—the

5 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 6

Mandatory Victim Restitution Act (MVRA), 18 U.S.C. § 3663A, which mandates

restitution to victims of certain crimes, including bank fraud. Id. § 3663A(c)(1)(ii);

see United States v. Bowling, 619 F.3d 1175, 1187 (10th Cir. 2010) (ruling that the

MVRA requires “[a] district court sentencing an individual convicted of bank fraud”

to impose restitution).

In the PSR, the probation officer recommended that the court apportion the

stipulated restitution of $1,146,828.28 between two listed victims—WebBank for

$936,828.28, and Wells Fargo for $210,000. Williams didn’t object. 1 The court

awarded the total restitution and apportioned it as recommended. In doing so, the

court adopted the PSR’s extensive fact findings, which included many stipulated facts

included in the Plea Agreement.

The PSR explained the reason for recommending the apportionment of $210,000

to Wells Fargo. It noted that in 2011, WebBank had sued Wells Fargo “based on Wells

Fargo’s negotiation of WebBank’s checks despite the fact they bore forged

1 His counsel was attentive and disputed other matters, though, objecting to including the attempted-loan amount of $550,000 as loss in setting the advisory sentencing range under the sentencing guidelines.

6 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 7

endorsements.” 2 R. vol. 4 at 272. The PSR noted that “[t]he lawsuit was settled with

Wells Fargo Bank agreeing to pay WebBank $210,000.” Id. It recommended the parties’

stipulated total-restitution amount of $1,146,828.28, “[p]ursuant to 18 U.S.C. § 3663A.”

Id. at 296.

At the sentencing hearing, the district court addressed Williams’s objections to the

PSR, none of which pertained to restitution. Afterward, the court turned to restitution,

noting that “Mr. Williams is essentially broke, financially unable presently or

prospectively to pay a fine or interest on restitution.” R. vol. 8 at 35. Thus, the court

imposed no fine and waived any interest on restitution. The court then adopted the PSR’s

recommended total restitution and its apportionment between “the two victims identified

2 If Williams is contesting the Wells Fargo findings as plain error, he must fail. We acknowledge that in Davis v. United States, 140 S. Ct. 1060, 1061–62 (2020) (per curiam), the Court rejected the Fifth Circuit’s rule that plain-error review was unavailable for unpreserved fact issues. In United States v. Cristerna-Gonzalez, 962 F.3d 1253, 1262 (10th Cir. 2020), we noted that Davis didn’t rule that plain error of facts can be established by speculation. And we examined United States v. Saro, 24 F.3d 283 (D.C. Cir. 1994), a case cited approvingly in Davis, in which the D.C. Circuit ruled that the district court had plainly erred in adopting unobjected-to PSR facts concerning a defendant’s aiding and abetting negotiations in a drug transaction. Id. On this point, we emphasized Saro’s language that “at least when those findings are internally contradictory, wildly implausible, or in direct conflict with the evidence that the sentencing court heard at trial, factual errors can indeed be obvious.” Id. at 1263 (emphasis omitted) (quoting Saro, 24 F.3d at 291). That sort of situation differs from Williams’s. Here, the district court acted properly in “accept[ing] any undisputed portion of the [PSR] as a finding of fact,” Fed. R. Crim. P. 32(i)(3)(A), and Williams’s failure to object permitted the court to deem the fact admitted without requiring additional evidence from the government, United States v. Hooks, 551 F.3d 1205, 1217 (10th Cir. 2009); see also United States v. Dickerson, 678 F. App’x 706, 723 (10th Cir. 2017) (unpublished) (ruling that “the law does not require the government to make a showing at the restitution hearing where the facts underlying the restitution amounts are undisputed”).

7 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 8

in the sentencing recommendation[.]” 3 Id. Next, the court found that “[a]s a proximate

result of Mr. Williams[’s] criminal conduct in committing the crime of conviction,

WebBank . . . ha[d] suffered pecuniary losses of $936,828.28, and Wells Fargo

Bank . . . ha[d] suffered pecuniary losses totaling $210,000, making total restitution of

$1,146,828.28.” 4 Id. Neither party objected or asked for additional findings.

Now, Williams has changed his mind about his restitution stipulation, challenging

the restitution order on two grounds. He challenges the total amount, contending that the

court had authority to order just $787,574.58 in restitution, the amount then owed on his

fraudulent loan charged in his sole count of conviction. He also challenges that the court

apportioned the restitution between WebBank and Wells Fargo, arguing that Wells Fargo

wasn’t a victim to which restitution is permitted. He also now challenges his prison

sentence. We review under 28 U.S.C. § 1291.

3 The MVRA has two definitions of victim: one, a “person directly and proximately harmed as a result of the commission of an offense” and two, a person “directly harmed by a defendant’s criminal conduct in the course of [a] scheme” from an offense involving scheme as an element. 18 U.S.C. § 3663A(a)(2) (emphasis added). 4 According to Wells Fargo’s Declaration of Victim Losses statement, in the 2011 lawsuit, it paid $210,000 to settle WebBank’s 2011 lawsuit alleging that Wells Fargo was responsible for “four checks totaling $531,698.90 deposited into Alan Williams’[s] business checking account . . . between 12/9/07 and 6/17/08.” R. vol. 4 at 304. “All four checks had dual payees but were only endorsed by Williams.” Id. According to WebBank’s Declaration of Victim Losses, it suffered $1,058,707.38 in losses from Williams’s bank fraud, after offsetting its losses by the $146,176.51 it recovered “by suing Wells Fargo on some forged checks.” Id. at 305.

8 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 9

DISCUSSION

In resolving this appeal, we begin by examining whether the appeal waiver bars

Williams from appealing the issues he now raises. After determining that it doesn’t, we

then address the merits of Williams’s restitution and prison-sentence arguments. On the

merits of his restitution arguments, Williams must surmount the invited-error and plain-

error standards, two steep climbs that he cannot summit. On the merits of his argument

challenging the substantive reasonableness of his sentence, he hasn’t showed that the

district court abused its discretion in imposing its 84-month sentence.

I. Appeal Waiver

The Plea Agreement in this case contains an appeal waiver, detailed below. But

the terms of the appeal waiver and other related Plea Agreement provisions do not bar

Williams’s appeal of the total-restitution amount; an exception to the waiver saves that

argument. Accordingly, the Plea Agreement allows him to appeal other matters that the

appeal waiver otherwise would have barred—both the apportionment of restitution and

the substantive reasonableness of his prison sentence. That’s because the Plea Agreement

provides that if an appeal-waiver exception applies, he “may appeal on any ground that is

properly available in an appeal that follows a guilty plea.” R. vol. 1 at 118. And because

we conclude that the appeal waiver doesn’t bar Williams’s arguments, we decide the

merits of Williams’s challenges on appeal.

A. General Principles Governing Appeal Waivers

Waivers of the right to appeal are generally enforceable. United States v. Hahn,

359 F.3d 1315, 1324–25 (10th Cir. 2004) (en banc) (per curiam). In resolving the

9 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 10

enforceability of an appeal waiver, we apply a three-prong inquiry: (1) whether the

disputed appeal falls within the scope of the appeal waiver; (2) whether the defendant

knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the

appeal waiver would result in a miscarriage of justice. Id. at 1325 (citation omitted). We

decide de novo whether an appeal waiver is enforceable. United States v. Lonjose, 663

F.3d 1292, 1297 (10th Cir. 2011) (citation omitted). In evaluating Williams’s appeal

waiver, we need go no further than the first prong, because his appeal is outside the

scope of the waiver.

B. Williams’s Appeal Waiver

In assessing plea agreements, we construe all the agreement’s provisions together.

United States v. Gordon, 480 F.3d 1205, 1209 (10th Cir. 2007). In negotiating key terms

of the Plea Agreement, the parties agreed to the following appeal waiver:

The defendant is aware that 18 U.S.C. § 3742 affords him the right to appeal his sentence, including the manner in which that sentence is determined. Understanding this, and in exchange for the concessions made by the government in this agreement, the defendant knowingly and voluntarily waives the right to appeal any matter in connection with this prosecution, conviction, or sentence unless it meets any[5] of the following criteria: (1) the sentence exceeds the maximum penalty provided in the statutes of conviction . . . .[6]

5 The word “any” is handwritten into the Plea Agreement and initialed by counsel. R. vol. 1 at 118. 6 The other two conditions apply if the court imposes a sentence beyond a defined upper limit (which didn’t happen in this case) and if the government appeals (which again didn’t happen).

10 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 11

R. vol. 1 at 118. 7

And in a section entitled “STATUTORY PENALTIES,” the Plea Agreement

provides some guidance on the meaning and application of “maximum penalty”:

The maximum statutory penalty for a violation of 18 U.S.C. § 1344 is: not more than 360 months of imprisonment; a fine of not more than $1,000,000 or the greater of twice the gross gain or twice the gross loss from the offense, or both a fine and imprisonment; not more than 5 years of supervised release; a $100 special assessment fee; plus restitution.

Id. at 119. Though the “plus restitution” term by itself doesn’t specify a maximum

restitution, the Plea Agreement provides that “[t]he parties agree that the [MVRA]

applies, and that the amount of restitution in this case is $1,146,828.28.” Id. at 118.

We recognize that restitution presents a less-obvious sort of “maximum” than do

the other categories of penalties. For instance, the statutory maximum prison time of

30 years is self-evident. Determining the maximum restitution requires more work. In

identifying the MVRA’s limits in a particular case, a district court must find facts and

then apply them through a multi-layered legal framework. For instance, the amount of

restitution a court may order to most victims is limited to the losses directly and

proximately caused by the defendant’s conduct underlying the offense of conviction,

7 Remember, the Plea Agreement provides that if any of the three appeal- waiver exceptions applies, Williams “may appeal on any ground that is properly available in an appeal that follows a guilty plea.” R. vol. 1 at 118. Without this provision, the appeal waiver would bar his present appeal of his prison sentence, because his sentence doesn’t “exceed[] the maximum sentence within the advisory guideline range that applies to a total offense level of 20[.]” Id. And it would bar his apportionment-of-restitution argument because that doesn’t relate to a maximum sentence when Williams would otherwise owe the total restitution to WebBank.

11 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 12

though the amount of restitution a court may order to some victims is limited to the losses

directly caused by a defendant’s conduct in a scheme. See 18 U.S.C. § 3663A(a)(2).

But the government drafted the Plea Agreement, including the appeal waiver and

associated provisions. And we read any ambiguities in appeal waivers against the

government and in favor of a defendant’s appellate rights. Lonjose, 663 F.3d at 1297

(citations omitted). On appeal, Williams has made a sufficient threshold argument that

the total restitution exceeds the MVRA’s limit (i.e., what the district court had authority

to order paid to WebBank) that he may proceed to the merits. See Gordon, 480 F.3d

at 1208–10 (reading the plea agreement as a whole in determining that the terms of the

appeal waiver didn’t waive the defendant’s ability to challenge the restitution order as

illegal under the MVRA); cf. United States v. Cooper, 498 F.3d 1156, 1158–60 (10th Cir.

2007) (enforcing an appeal waiver of the “sentence as imposed by the Court and the

manner in which the sentence is determined” against a challenge to restitution). If the

government expects us to enforce an appeal waiver in circumstances like these, it needs

to write a better appeal waiver. We conclude that Williams’s appeal waiver doesn’t bar

his appeal of the restitution order.

II. Restitution Order

A. Total-Restitution Amount

Despite clinging to the benefits of the Plea Agreement (Williams emphasizes that

he is not seeking to withdraw his favorable plea deal) and acknowledging that he

stipulated to total restitution of $1,146,828.28 (the amount owing on his two loans

comprising Counts One through Three), Williams now complains that the district court

12 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 13

exceeded its authority under the MVRA by imposing the exact amount of restitution he

asked the district court to impose. 8 The invited-error and plain-error doctrines await.

1. Invited Error: Total-Restitution Amount

As mentioned, Williams claims that the district court erred by imposing the total

amount of restitution that he stipulated to in the Plea Agreement. He faults the district

court, not himself. We, on the other hand, fault Williams, who invited any alleged error.

“The invited error doctrine prevents a party from inducing action by a court and later

seeking reversal on the ground that the requested action was error.” United States v.

Johnson, 183 F.3d 1175, 1178 n.2 (10th Cir. 1999). And more specifically, a defendant

cannot invite a district court to impose restitution and later complain that the court was

without authority to require any restitution. Id. at 1179 (citation omitted) (ruling in a case

in which the defendant stipulated to a smaller amount of restitution than the court

ordered); see also United States v. Sukhtipyaroge, 1 F.4th 603, 606 (8th Cir. 2021) (ruling

in a visa-fraud case that by expressly agreeing that a person “was entitled to at least some

restitution as an ‘identifiable victim,’ [the defendant] cannot now make the exact opposite

8 In United States v. Peterson, 268 F.3d 533, 534 (7th Cir. 2001) (Easterbrook, J.), the court addressed a similar claim from a defendant who on appeal “sings a different tune.” After reciting the plea-agreement benefits that the defendant sought to keep while contesting his stipulated restitution, the court observed that “[i]t is not clear that he understands the principal implication of this position: that his plea must be set aside, the four dismissed counts reinstated, and the prosecution resumed in the district court.” Id. The court noted that it was “not an option” for the defendant to have the benefits of the plea agreement without the detriments. Id. In the court’s words, “[t]he whole plea agreement stands, or the whole thing fails.” Id. (citation omitted).

13 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 14

argument on appeal” (citation omitted)); United States v. Pappas, 409 F.3d 828, 830 (7th

Cir. 2005) (ruling that defendant waived any challenge to the restitution amount when he

stipulated to that amount in his plea agreement).

By stipulating to the total-restitution amount, Williams did more than not object.

With eyes open, he agreed that he owed $1,146,828.28 of restitution—the amount he still

owed on his fraudulent bank loans. His stipulation on total restitution led the government

to move to dismiss the remaining counts and agree not to charge him further. Yet

Williams now complains that $1,146,828.28 in restitution exceeds the $787,574.58 he

then owed on his fraudulent loan charged in Count One, his sole count of conviction. But

Williams knew that $1,146,828.28 exceeds $787,574.58 when he stipulated to the total-

restitution amount.

By stipulating to the total-restitution amount while referencing the MVRA,

Williams necessarily agreed that the MVRA supported that amount. 9 And here, as

9 As we understand it, Williams may be trying to short-circuit this conclusion by suggesting that the MVRA disallows a defendant from stipulating in a plea agreement to total restitution. In this regard, he contrasts language in the Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663, stating that “[t]he court may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement” with the MVRA’s silence on that point. 18 U.S.C. § 3663(a)(3). This misses the mark. The quoted language from subsection (a)(3) simply allows the parties to stipulate to restitution in “any criminal case,” not just cases involving the crimes specified in subsection (a)(1)(A). Otherwise stated, the “to the extent agreed” phrase modifies “any criminal case,” not “restitution.” Reading this sentence as Williams does requires treating “any criminal case” as surplusage. Cf. Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 174 (2012) (“If possible, every word and every provision is to be given effect . . . . None should be ignored.”). Further, neither the MVRA nor the VWPA limits total restitution—by allowing parties to stipulate to restitution for nonvictims, both statutes take any cap off restitution. 18 U.S.C. §§ 3663(a)(1)(A), 3663A(a)(3). 14 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 15

explained below, the district court could consider both the MVRA “victim” definitions in

accepting and adopting the parties’ stipulated total-restitution amount. In that

circumstance, Williams is stuck with any error he invited with his stipulation. He cannot

escape his invitation by now seeking to undermine its bank-fraud-scheme underpinnings

with arguments for extensions or reinterpretations of our circuit law (as discussed later).

By leading the district court to impose total restitution of $1,146,828.28, Williams

necessarily conceded that his § 1344 bank-fraud scheme justified that amount of

restitution under the MVRA. The parties couldn’t get to that high a figure without

accounting for the losses from the entire scheme. Simply put, Williams invited any

alleged error.

2. Plain Error: Total-Restitution Amount

Williams stipulated to the total-restitution amount, so it’s no surprise that he didn’t

object to the district court’s imposing it. Even if Williams had not stipulated to the total-

restitution amount, he would still lose. Because he didn’t object, we would review under

the plain-error standard. “To prevail under this standard, [a defendant] must show (1) an

error; (2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Mendenhall, 945 F.3d 1264, 1267 (10th Cir. 2019) (internal quotation marks and

citation omitted). Williams falters at step two: Regardless of whether the district court

erred, Williams fails to establish that any error was plain.

“[I]n the case of an offense that involves as an element a scheme,” the MVRA

extends restitution to “any person directly harmed by the defendant’s criminal

15 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 16

conduct in the course of the scheme.” 18 U.S.C. § 3663A(a)(2). The Indictment

details how Williams “knowingly engage[d] in a scheme to defraud a financial

institution, namely, WebBank, and to obtain funds owned by and under the custody

and control of it by means of materially false and fraudulent pretenses,

representations, and promises, (hereinafter referred to as ‘the scheme’).” R. vol. 1

at 9. After that, for Count One, the Indictment charges that Williams “did knowingly

execute and attempt to execute the scheme described in Paragraphs 1 and 2 of this

[I]ndictment by causing WebBank to fund a loan in the amount of $800,000 to

[WVC], all in violation of Title 18, United States Code, Sections 1344 and 2(b).” Id.

at 16.

For the first time on appeal, Williams argues that the district court couldn’t

lawfully impose restitution based on his bank-fraud scheme. 10 He notes that the bank-

fraud statute criminalizes the conduct of a person who “knowingly executes, or attempts

to execute, a scheme or artifice,” 18 U.S.C. § 1344 (emphasis added), not just a

“scheme” as required by the MVRA, § 3663A(a)(2). In short, he contends that “scheme

The MVRA scheme provision is what enables the total restitution to exceed 10

the amount resulting from Williams’s conduct underlying his count of conviction, Count One, relating to the $800,000 loan. That is, the additional restitution is based on the bank-fraud scheme.

That scheme makes it easier for Wells Fargo to also be considered a “victim.” The MVRA scheme provision requires merely a showing of direct harm; the other victim definition requires direct and proximate harm. 18 U.S.C. § 3663A(a)(2). But even without relying on the scheme “victim” definition, that is, on the bank-fraud scheme, Wells Fargo could still qualify as a victim, because its losses stemmed from the count of conviction.

16 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 17

or artifice” is broader than the MVRA’s condition that the offense “involves as an

element a scheme, conspiracy, or pattern.” He argues that “scheme or artifice” establishes

alternative means of violating § 1344, not alternative elements.

Williams bases his argument on Mathis v. United States, 136 S. Ct. 2243 (2016),

which established the elements-or-means test for categorical-approach analyses. But

Mathis ruled on the Armed Career Criminal Act’s (ACCA), 18 U.S.C. § 924(e),

language, which differs from the MVRA’s language in text and purpose. See, e.g.,

Mathis, 136 S. Ct. at 2247. The ACCA increases firearm-possession penalties (fines and

imprisonment) for defendants with three predicate “serious drug offense[s]” or “violent

felon[ies]” or a combination of them. 18 U.S.C. § 924(e)(1). In considering whether a

felony is violent, the ACCA asks whether the crime “has as an element the use, attempted

use, or threatened use of physical force against the person of another.” Id.

§ 924(e)(2)(B)(i) (emphasis added). In contrast, the MVRA extends restitution liability to

an “offense that involves as an element a scheme, conspiracy, or pattern of criminal

activity.” Id. § 3663A(a)(2) (emphasis added). Further, though the ACCA bears on

criminal penalties, our circuit doesn’t treat restitution as a penalty (even though the Plea

Agreement in this case defined it as such for appeal-waiver purposes). See United States

v. Serawop, 505 F.3d 1112, 1122–23 (10th Cir. 2007) (stating that “we have

recognized that the MVRA does not inflict criminal punishment, and thus is not

punitive” (citations and footnote omitted)).

Williams didn’t preserve a Mathis-type, categorical-approach argument, so we

don’t review its merits de novo. Instead, as mentioned, Williams must meet the stringent

17 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 18

requirements of plain error. And as the government notes, Williams hasn’t cited a case

ruling that Mathis’s categorical approach requires a finding that “scheme or artifice”

captures conduct beyond “scheme.” Indeed, though pre-Mathis, our circuit has said the

opposite about the federal wire-fraud statute’s “scheme or artifice” element in relation to

restitution under the MVRA. See United States v. Gallant, 537 F.3d 1202, 1248 (10th Cir.

2008) (examining the wire-fraud statute). Moreover, as the government notes, it’s an

open question in our circuit whether artifice is something within every scheme. Cf.

Desnick v. Am. Broad. Cos., 44 F.3d 1345, 1355 (7th Cir. 1995) (“An elaborate artifice of

fraud is the central meaning of a scheme to defraud through false promises.”).

Nor have we located a case ruling contrary to Gallant on this point. So we can cut

to the simplest way in which Williams fails. Williams cannot meet the second prong of

the plain-error analysis. He hasn’t identified any Supreme Court or Tenth Circuit case (or

any case from another circuit) applying the categorical approach to § 1344 bank fraud in

calculating restitution under the MVRA. And we see a good reason why Williams didn’t

make this sort of Mathis argument in district court—he likely would have jeopardized his

Plea Agreement had he contested the total-restitution amount. Accordingly, Williams

fails in his argument that the district court plainly erred in imposing $1,146,828.28 as

restitution.

B. Apportionment Between WebBank and Wells Fargo

For the first time on appeal, Williams challenges the district court’s apportioning

$210,000 of the total restitution to Wells Fargo. He correctly notes that the Plea

Agreement doesn’t identify by name any entities that qualify as a victim under the

18 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 19

MVRA. But he acknowledges that the PSR recommended apportioning the total

restitution between two MVRA victims: WebBank and Wells Fargo. And he concedes

that he didn’t object to the PSR’s recommendation.

Even so, Williams maintains that Wells Fargo is not a victim under the MVRA.

He must meet the plain-error standard to prevail on this argument. But he faces an even

more difficult challenge than he did on the total-restitution issue. Once he’s lost on his

total-restitution issue, he can no longer maintain that the total restitution of $1,146,828.28

isn’t owed at least to WebBank. As the government puts it, “Williams’[s] substantial

rights are undiminished, given that he agreed to restitution of $1.15 million in his Plea

Agreement, all of which would have been payable to WebBank if not for its settlement

with Wells Fargo.” Appellee’s Answer Br. at 12. And that leaves him in an untenable

spot under a plain-error analysis. Though he faces problems on all four prongs of that

analysis, we again cut to the easiest ones on which to affirm—the second and third.

As for the second prong, Williams hasn’t cited a case ruling that a defendant can

complain about apportionment of an enforceable total amount of restitution. Nor have we

located any authority on that point. Accordingly, Williams hasn’t shown that his alleged

error is plain.

As for the third prong, Williams hasn’t shown that the district court’s

apportionment of his owed restitution substantially prejudiced him. See United States v.

Miller, 406 F.3d 323, 331–32 (5th Cir. 2005) (ruling that the alleged mistaken award of

restitution to the incorrect recipient didn’t affect the defendant’s substantial rights,

“because [the defendant] would be required to pay the same amount of restitution,

19 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 20

regardless of which entity receives it”); United States v. Brantley, 537 F.3d 347, 353 (5th

Cir. 2008) (ruling that any error in imposing a fine instead of restitution didn’t affect the

defendant’s substantial rights, because the fine was about the same as the restitution the

court could have awarded). Every dollar of restitution Williams pays will count in his

favor. His total-restitution obligation will neither rise nor fall depending on whether his

case involves one victim or two. Any issue from the apportionment would be an issue

between Wells Fargo and WebBank, and they have none.

III. Prison Sentence

Williams challenges the substantive reasonableness of his 84-month prison

sentence. The district court calculated an advisory guideline range of 57–71 months (after

reducing the PSR’s recommended total offense level from 20 to 18 to comport with

Williams’s position on the amount of loss). It then varied upward by two levels back to

20, and to an advisory guideline range of 70–87 months, after considering the sentencing

factors set out at 18 U.S.C. § 3553(a). Once there, the court imposed an 84-month

sentence, an upward variance of thirteen months, or 18 percent. 11

11 In the district court, Williams sought downward departures and variances. On appeal, he argues against the district court’s sentence both as an upward departure and as a variance. We see no confusion in the record. The court “var[ied] upward.” R. vol. 8 at 34. It applied the section 3553(a) factors: “Next, I considered carefully the sentencing factors and needs of the federal sentencing statute codified at 18 U.S.C. Section 3553(a)(1) through (7) and made an individualized assessment based on the facts presented.” Id. at 31. The court mentioned departures only in rejecting Williams’s motion for a downward departure.

20 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 21

In its § 3553(a) analysis, the district court noted that Williams’s fraud “was a

serious offense in the way it was planned and perpetrated, and in the terms of the victims

affected and the amount of actual loss to those victims.” R. vol. 8 at 32. Further, the court

noted Williams’s long criminal history, which included fifteen felony convictions for

“offenses including robbery, forgery, criminal attempt to commit theft, or burglary, theft,

aggravated motor vehicle theft, and identity theft.” Id. at 33. The court remarked that

“[t]his is one of the most extensive criminal records that I’ve seen on the bench.” Id.

The district court also addressed Williams’s “threat to the public, the need for

deterrence, and the need for avoidance of unwarranted sentencing disparities[.]” Id. It

described Williams as “a career and habitual offender who presents a clear, present, and

ongoing threat to the public, especially our financial institutions.” Id. In considering all

the circumstances, the court noted that “[t]roubling here, there are no special or

compelling mitigating circumstances.” Id. Reviewing the failure of past “judicial

interventions,” the court noted that Williams’s “philosophy and lifestyle evince an abject

disrespect for our laws and the rights of our citizens.” Id. at 34. And the court noted

“[a]nother troubling and exacerbating, aggravating circumstance,” that is, Williams’s

“continued exploitation of a hapless female drug addict to execute his scheme, and that

continued exploitation is unconscionable.” Id. 12

The PSR advised the court of interviews conducted with Ms. X’s sister in 12

which she stated that Ms. X had been addicted to crack cocaine for five years (and during Williams’s bank-fraud scheme) so badly that she was emaciated, weighing about 80 pounds. During this time, the sister said, Williams was the only person who would provide Ms. X cash.

21 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 22

The district court’s sentence fell within the limits of Williams’s appeal waiver.

Williams reserved the right to appeal the length of his prison time only if “the sentence

exceeds the maximum sentence within the advisory guideline range that applies to a total

offense level of 20[.]” R. vol. 1 at 118. It doesn’t. But as earlier explained, because

Williams can appeal his total-restitution amount, he can appeal his prison sentence too.

We review substantive reasonableness for an abuse of discretion. See United

States v. Smart, 518 F.3d 800, 805–06 (10th Cir. 2008). In doing so, we ask “whether the

length of the sentence is reasonable given all the circumstances of the case in light of the

factors set forth in 18 U.S.C. § 3553(a).” United States v. Carter, 941 F.3d 954, 960–61

(10th Cir. 2019) (internal quotation marks and citation omitted). “A district court abuses

its discretion when it renders a judgment that is arbitrary, capricious, whimsical, or

manifestly unreasonable.” United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir.

2008) (citation omitted).

Williams complains of comments the district court made after explaining and

imposing its 84-month sentence. After reviewing Williams’s crime and the § 3553(a)

factors, the court ruled that a seven-year sentence was proper “to achieve and vindicate

the important requirements and needs of the federal sentencing statute.” R. vol. 8 at 34.

Immediately after that, the district court stated an afterthought: “Additionally, even if

only parenthetically, in my long experience[,] a sentence of seven years for a 16th felony

conviction where the actual loss approaches $1.5 million is certainly not unreasonable. In

the state court system in Colorado, Mr. Williams would easily be approaching habitual

criminal territory.” Id. at 34–35.

22 Appellate Case: 19-1229 Document: 010110565060 Date Filed: 08/23/2021 Page: 23

Williams contends that the court abused its discretion by treating a loss of

$1,114,828.28 as one that “approaches $1.5 million.” Opening Br. at 46–48. Whatever

“approaches” means, we note that the district court had just reviewed the loss figures and

knew what they were. This comment doesn’t show the abuse of discretion necessary to

warrant a resentencing.

Williams also complains that the district court tied its sentence to Colorado state

law. But we see nothing showing that the district court’s remark about habitual-offender

status under Colorado law impacted his sentence. As mentioned, the district court had

already explained and imposed its sentence.

Finally, Williams complains that though his criminal-history category was VI, the

court increased his sentence based on his criminal history. But the district court was free

to consider Williams’s long criminal history and explained its basis for doing so. In short,

we see no abuse of discretion.

CONCLUSION

For the foregoing reasons, we affirm the restitution order and the prison sentence.