United States v. Williams

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 25, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 20-4022 v. (D.C. No. 4:18-CR-00036-DN-1) (D. Utah) SHELTON WILLIAMS,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BACHARACH, EBEL, and EID, Circuit Judges. _________________________________

Defendant-Appellant Shelton Williams pled guilty to four counts of pharmacy

burglary. At sentencing, the district court ordered Williams to pay restitution for an

additional six uncharged pharmacy burglaries. Williams failed to object at the time,

but now argues that the district court plainly erred in imposing restitution for

uncharged burglaries for which he now alleges there was insufficient evidence in the

record to support. The government responds that Williams’ appeal is barred by the

appeal waiver contained in his plea agreement. We agree. Exercising jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we dismiss this appeal.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. Background

Williams, a member of the Insane Crips gang, was part of a crew of Insane

Crips burglarizing pharmacies in California, Nevada, and Utah in order to steal

opioids. Following an FBI investigation, Williams was arrested and charged with

numerous pharmacy burglaries.

Eventually, Williams accepted a plea agreement in which he pled guilty to four

counts of pharmacy burglary and one count of conspiracy to distribute a controlled

substance. The plea agreement contained an appeal waiver, as well as an agreement

that Williams would pay mandatory restitution, plus restitution to “victims of

unpleaded or uncharged relevant conduct pursuant to 18 U.S.C. § 3663A(a)(3).”

(R., vol. I, at 48–49.) The plea agreement did not specify any such victims or any

such relevant conduct.

Following Williams’ plea, the U.S Probation Office prepared a Presentence

Report (PSR) to aid the district court in sentencing. The PSR stated that Williams

had participated in post-arrest interviews with the FBI and admitted to committing an

additional six uncharged burglaries, and that in his plea agreement he had agreed that

relevant conduct, including uncharged conduct, would be included in the PSR and

that the court would order restitution. Accordingly, the PSR included the six

uncharged burglaries in its calculation of restitution. Williams did not object to the

PSR.

2 At the sentencing hearing, the parties did not discuss restitution. Ultimately,

the district court imposed the full restitution amount calculated in the PSR. Williams

did not object.

II. Discussion

On appeal, Williams argues that the district court plainly erred in ordering

restitution for the six uncharged pharmacy burglaries “without support in the record”

that Williams committed those burglaries. (Aplt. Br. 14.) In response, the

government maintains that Williams’ argument is precluded by his plea-agreement

appeal waiver. Accordingly, before we may consider the merits of Williams’

argument, we must determine whether the appeal waiver bars such review. We

conclude that it does.

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

Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). To determine

whether an appeal waiver precludes review of an appeal, this Court employs 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 waiver would result in a miscarriage of justice.

Id. at 1325. Whether an appeal waiver is enforceable is a question of law this Court

considers de novo. United States v. Lonjose, 663 F.3d 1292, 1297 (10th Cir. 2011).

Here, the dispute turns on the first prong—whether Williams’ restitution

challenge falls within the scope of his appeal waiver. That waiver provides:

3 I knowingly, voluntarily, and expressly waive my right to appeal any sentence imposed upon me, except that I do not waive the right to appeal as set forth in 18 U.S.C. § 3742(c)(1), which states that I may not file a notice of appeal unless the sentence imposed is greater than the sentence set forth in this agreement.

(R., vol. I, at 48.) The waiver later notes that the term “sentence” includes “any

orders of restitution.” (Id. at 49.)

The parties apparently agree that this waiver would preclude Williams’ appeal

unless the appeal falls within the narrow categories of appeals governed by United

States v. Gordon, 480 F.3d 1205 (10th Cir. 2007).1 In Gordon, this Court held that an

appeal waiver does not waive the right to challenge an “unlawful restitution order.”

Id. at 1208. In that case, the defendant pled guilty to a single count of credit card

fraud, and the district court ordered restitution that included amounts for other,

uncharged instances of credit card fraud by the defendant. Id. at 1207. But unlike

Williams here, the Gordon defendant had not agreed to pay restitution for uncharged

conduct. Id. at 1211. Accordingly, despite having agreed to an appeal waiver, the

1 Analysis of the waiver provision might be complicated by the fact that the government admittedly miswrote it, mistakenly including Rule 11(c)(1)(C) appeal waiver language instead of the appeal waiver language for a regular Rule 11 plea. I.e., instead of precluding appeals other than those imposing a sentence greater than that set out in the plea agreement, the waiver should have precluded appeals “with exceptions if the court imposed a sentence above the maximum penalty provided in the statute of conviction or above the high-end of the guideline range as determined by the district court at sentencing.” (Aple. Br. 27 n.6.) But we need not consider the impact of the mistakenly included language because Williams agrees with the government that “the difference is immaterial for present purposes.” (Reply Br. 14 n.5.) Both parties accept that the appeal-waiver issue turns solely on whether Gordon applies. 4 Gordon defendant appealed the restitution order, arguing that the district court lacked

the statutory authority to order restitution for the uncharged conduct. Id. at 1207.

The Gordon court held that the defendant’s appeal was not precluded by her

appeal waiver, reading the waiver not to waive the right to appeal any sentence

beyond that which could be lawfully imposed. Id. at 1209. Accordingly, the court

concluded that the waiver did not waive the right to appeal an unlawful restitution

order. Id.

Gordon might be read to suggest a broad exception to an appeal waiver,

allowing a defendant to evade the waiver whenever he challenges a restitution order

as unlawful. In United States v. Cooper, 498 F.3d 1156 (10th Cir. 2007), however,

this Court explained that Gordon created an “extremely narrow” exception that

“applies only in the case where there is no factual dispute as to the amount of

restitution linked to an offense and the legality of the district court’s restitution award

can therefore be reviewed solely as a question of law.” Id. at 1160.

In Cooper, the defendant attempted to challenge a restitution order, despite an

appeal waiver, on the basis that restitution to a particular individual was improper

because that individual had a claim to a mortgage on the defendant’s house and could

recover the money through foreclosure. Id. The Cooper court characterized that as a

factual challenge “arguing that the government failed to produce sufficient evidence

to prove that [the other individual] was a victim of [the defendant’s] related

conduct.” Id. The court held that this sort of sufficiency-of-the-evidence challenge,

5 “necessarily based on disputed facts,” did not fall within the Gordon exception and

was thus “clearly barred” by a general appeal waiver. Id.

Here, the dispute over whether Williams’ appeal falls within the scope of his

appeal waiver comes down to whether the appeal is governed by Gordon or by

Cooper. That, in turn, depends on whether the appeal presents solely a question of

law versus a factual challenge based on the sufficiency of the evidence and

necessarily dependent upon disputed facts. If the former, Gordon says it is

reviewable despite the waiver; if the latter, Cooper precludes review.

Naturally, the parties do not see eye-to-eye on this issue. The government

argues that Williams’ appeal presents a “factual dispute concerning the district

court’s calculation of the restitution award, arguing that the United States failed to

produce sufficient evidence to show that Williams should be held accountable for the

losses in the six uncharged burglaries.” (Aple. Br. 25.) Williams responds that his

appeal solely presents a question of law: whether the district court erred by imposing

a restitution order after finding there was no record support for it. Williams further

notes that he does not dispute the amount of loss associated with any of the pharmacy

burglaries, charged or uncharged.

Focusing on Williams’ Opening Brief, we conclude that his appeal plainly

presents a factual challenge based on the sufficiency of the evidence. To start, the

argument section in his brief is entitled, “It is Plain Error to Impose Restitution for an

Amount for which there is no Record Basis.” (Aplt. Br. 8.) In making that argument,

Williams first notes that the government bears the burden of establishing the

6 propriety of restitution by a preponderance of the evidence. Williams then reviews

the evidence in the record and argues about its import, asserting that the parties and

the district court all had difficulty pinpointing in the record any actual admission by

Williams of his involvement regarding the uncharged burglaries.

That analysis leads Williams to assert plain error in that “[t]he district court

ignored the express language of [18 U.S.C. § 3664(e)] in imposing restitution in the

absence of evidence that the losses suffered in the six uncharged burglaries were

‘a result of the offense’ Mr. Williams committed.” (Id. at 13 (emphasis added).)

Williams goes on to argue that in addition to the FBI interview transcripts not

providing sufficient evidence, the court could not have inferred that Williams

committed the uncharged burglaries based on his admission to the charged ones.

Williams concludes that “[t]he district court’s restitution order with regard to the

uncharged burglaries is without support in the record,” (id. at 14), and that because

“the record did not permit the conclusion that the losses incurred in the uncharged

burglaries were attributable to Mr. Williams,” the district court erred by “issu[ing] an

order unsupported by the evidence,” (id. at 17 (quoting United States v. Fair,

699 F.3d 508, 516 (D.C. Cir. 2012))).

That all can only be read as a factual challenge to the sufficiency of the

evidence to support the district court’s restitution order. As a sufficiency-of-the-

evidence challenge, necessarily based on disputed facts, it is governed by Cooper, not

Gordon, and Williams’ appeal waiver bars review of his appeal.

7 In his Reply Brief, in response to the government’s argument that Cooper

precludes appeal, Williams recasts his argument as a legal one. To do so, he asserts

that he does not challenge the sufficiency of the evidence but instead argues that the

district court erred as a matter of law by imposing a restitution order after finding

there was no record support for it. This is a not-so-subtle shift from what Williams

argued in his Opening Brief. There, Williams indeed noted that the district court had

commented on the difficulty in finding record support connecting Williams to the

uncharged burglaries, but he offered that statement as support for his sufficiency-of-

the-evidence challenge, not as the basis for a purely legal challenge to the restitution

order. Nowhere in the Opening Brief does Williams argue that the district court

erred as a matter of law by imposing restitution for uncharged conduct after allegedly

finding insufficient evidence to prove that conduct.2

Instead, Williams waited to raise his new argument until his Reply Brief, and

he cannot morph the factual challenge in his Opening Brief into a legal challenge in

his Reply Brief in order to evade application of his appeal waiver. For these reasons,

we conclude that Williams’ appeal is a sufficiency-of-the-evidence challenge

governed by Cooper, thus falling within the scope of his appeal waiver. See Cooper,

498 F.3d at 1160 (“A challenge to the amount of a restitution award based on

2 We also note that the district court never made such a finding. Williams takes the district court’s admitted difficulty in interpreting FBI interview transcripts and mischaracterizes it as an express finding that Williams did not admit to the uncharged burglaries. The court made no such a finding, but instead only questioned the parties about where to find record support. Williams cannot point to anything more definitive in the record to support his assertion of a district court “finding.” 8 sufficiency of the evidence is necessarily based on disputed facts and thus does not

fall within the Gordon exception. Accordingly, it is clearly barred by a general

waiver of the right to appeal a restitution award.”)

In addition, the government argues that the waiver was knowing and voluntary,

and enforcing the waiver would not result in a miscarriage of justice. Yet the Court

need not reach these issues, because Williams has waived any such consideration by

inadequately presenting any argument under these prongs.

Because we conclude that Williams’ appeal falls within the scope of the appeal

waiver and that he has waived any other argument against enforcement of the waiver,

the Court holds that his appeal is precluded by the waiver.3 Accordingly, we dismiss

this appeal.4

3 The government additionally argued that Williams had waived any objection to the district court’s restitution award by inviting any error. Because we resolve this appeal based on the appeal waiver, we need not address the government’s invited- error argument. 4 We further note that even if Williams’ appeal was not precluded by his plea agreement appeal waiver, it would be waived due to Williams’ failure to object to the PSR’s inclusion of the uncharged burglaries. The sufficiency of the evidence to prove the uncharged burglaries is a factual dispute, and “failure to assert a factual dispute at sentencing waives the challenge because it prevented . . . the district court from resolving the fact issue.” United States v. Wright, 848 F.3d 1274, 1285 (10th Cir. 2017) (omission in original) (quoting United States v. Zhou, 717 F.3d 1139, 1154 (10th Cir. 2013)). Had Williams contested the restitution order at sentencing, the district court could have asked the government for more support to establish that Williams had committed the uncharged burglaries. “By not protesting the . . . restitution amounts in the district court, [Williams] has waived them on appeal.” Id. But, once again, we need not address this in detail because of Williams’ overall appeal waiver. 9 III. Conclusion

For the reasons provided above, we DISMISS Williams’ appeal as barred by

the appeal waiver contained in his plea agreement.

Entered for the Court

David M. Ebel Circuit Judge