                Case: 12-14511        Date Filed: 07/08/2015       Page: 1 of 9


                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              _______________________

                                      No. 12-14511
                                _______________________

                         D.C. Docket No. 2:11-cr-14052-KMM-3

UNITED STATES OF AMERICA,

                                                                    Plaintiff – Appellee,

                                             versus

CHRISTOPHER ANDREW HALE,

                                                                    Defendant – Appellant.

                                _______________________

                      Appeals from the United States District Court
                          for the Southern District of Florida
                             ________________________

                                         (July 8, 2015)

Before MARTIN, Circuit Judge, and RESTANI, * Judge, and HINKLE, ** District
Judge.

HINKLE, District Judge:

       *
          Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
       **
           Honorable Robert L. Hinkle, United States District Judge for the Northern District of
Florida, sitting by designation.
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      This criminal appeal presents a single issue on the merits: whether the

district court properly determined the amount of restitution. The defendant’s

employer entered a services contract with a corporation that paid the defendant a

kickback for his role in placing the contract. The district court awarded as

restitution the difference between the amount the defendant’s employer actually

paid for services under the tainted contract, on the one hand, and the amount the

employer could have paid to have the same services rendered under an untainted

contract, on the other hand. This was the correct amount.

      The appeal also presents a secondary issue: whether the defendant waived

his right to appeal. We hold that the government waived the right to invoke the

waiver.

                                           I

      A grand jury returned a four-count superseding indictment against the

appellant Christopher Andrew Hale and two codefendants, Jeffrey Wayne

Aunspaugh and Angela Bryant Aunspaugh. Count one charged conspiracy to

commit mail fraud in violation of 18 U.S.C. § 1349. Count two charged

conspiracy to commit money laundering—to launder the proceeds of the mail

fraud—in violation of 18 U.S.C. § 1956(h). Count three charged conspiracy to

structure financial transactions in violation of the general conspiracy statute, 18



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U.S.C. § 371. Count four charged actually structuring transactions in violation of

31 U.S.C. § 5324.

      Mr. Hale pleaded guilty to count one based on a written plea agreement.

The agreement accurately set out the maximum sentence and added: “The court

may also order restitution in an amount that will be determined at sentencing or in

a separate restitution hearing.” The agreement placed no limit on the amount of

restitution that could be awarded. Finally, the agreement included a waiver of the

right to appeal:

              Defendant is aware that Title 18, United States Code, Section
          3742 and Title 28, United States Code, Section 1291 afford
          Defendant the right to appeal the sentence imposed in this case.
          Acknowledging this, in exchange for the undertakings made by the
          United States in this plea agreement, Defendant hereby waives all
          rights conferred by Sections 3742 and 1291 to appeal any sentence
          imposed, including any restitution order, or to appeal the manner in
          which the sentence was imposed, unless the sentence exceeds the
          maximum permitted by statute or is the result of an upward
          departure and/or an upward variance from the advisory guideline
          range that the Court establishes at sentencing.

(Emphasis added.)

      At the Federal Rule of Criminal Procedure 11 plea proceeding, the judge

reviewed the plea agreement with Mr. Hale at some length, reading verbatim the

appeal waiver provision. Mr. Hale said he had discussed the appeal waiver with

his attorney and that the attorney had answered all Mr. Hale’s questions about the

waiver. Mr. Hale explicitly acknowledged that he understood he was waiving any

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right to appeal, with the limited exceptions set out in the agreement. The exception

for a sentence that “exceeds the maximum permitted by statute” was not separately

mentioned. The judge found, and Mr. Hale concedes, that the plea was knowing

and voluntary.

      The Aunspaughs went to trial. Mr. Hale testified, essentially admitting his

own guilt and implicating the Aunspaughs. The jury convicted the Aunspaughs on

all counts. The court sentenced each of the Aunspaughs to 63 months in prison

and sentenced Mr. Hale to 30 months. The court ordered the defendants to pay

restitution jointly and severally in the amount of $736,724.49.

      Mr. Hale brings this appeal, challenging only the amount of restitution. The

Aunspaughs have separately appealed, challenging their convictions and sentences,

including the restitution amount. We address their appeal in a separate opinion.

                                         II

      During the period at issue, Glades Electric Cooperative (“GEC”) provided

electrical power in four rural counties in central Florida. GEC had a wholly owned

subsidiary, Glades Utility Services, Inc. (“GUS”), that performed repair and

maintenance services for GEC and unrelated entities. GUS performed work using

its own equipment and employees but also sometimes hired subcontractors. And

GUS allowed its employees to moonlight—to work on projects on their own or as




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employees of others while not on company time—so long as the work was

disclosed to GUS.

      Mr. Hale became GUS’s general manager in 2005. Before the year was out,

he began directing subcontracts to Ener-Phase Electric, Inc., a corporation owned

by the Aunspaughs. Ener-Phase did not perform the work under the subcontracts

but instead hired a GUS employee, Steve Rolen, to do the work. Ener-Phase made

secret payments to Mr. Hale for his role in this arrangement. Neither Mr. Hale nor

Mr. Rolen disclosed the arrangement to anyone else at GUS.

      The relationship between GUS and Ener-Phase greatly expanded in the

aftermath of Hurricane Wilma. The hurricane crossed GEC’s coverage area in

October 2005, shifting thousands of wooden utility poles. The Federal Emergency

Management Agency approved GEC’s application for funds to straighten the poles.

GEC assigned the work to GUS, which initially entered a subcontract with a local

engineering firm, Transpower, Inc. Mr. Hale soon replaced that firm with Ener-

Phase. Ener-Phase had a license and insurance coverage but otherwise lacked the

resources to perform work of this kind. Ener-Phase again hired Mr. Rolen, who

did the work using GUS’s equipment.

      For each of some 4,000 poles he straightened, Mr. Rolen charged Ener-

Phase $75. Ener-Phase charged GUS $225. Ener-Phase generally paid Mr. Hale

half of its $150 margin per pole. Both by his guilty plea and in his testimony at the

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Aunspaugh trial, Mr. Hale admitted that the payments that he received were

kickbacks—illegal compensation for steering the work to Ener-Phase.

                                         III

      Mr. Hale acknowledges that a defendant ordinarily can validly waive the

right to appeal a sentence, including its restitution component. See, e.g., United

States v. Johnson, 541 F.3d 1064, 1067 (11th Cir. 2008). Here, though, the waiver

included an explicit exception for a sentence that “exceeds the maximum permitted

by statute.” Such an exception may be mandatory. See United States v. Bushert,

997 F.2d 1343, 1350 n.18 (11th Cir. 1993). Mr. Hale contends the restitution

amount exceeded the maximum permitted by statute because it exceeded GUS’s

actual loss. In one sense the amount of the victim’s loss is both the minimum and

maximum amount of restitution permitted by the statute.

      Neither Johnson nor Bushert addressed this issue. Other circuits have held

that the right to appeal is not waived in circumstances like these. See, e.g., United

States v. Caruthers, 458 F.3d 459, 471 (6th Cir. 2006); United States v. Elliott, 264

F.3d 1171, 1173 (10th Cir. 2001); United States v. Teeter, 257 F.3d 14, 25 n.10

(1st Cir. 2001); United States v. Phillips, 174 F.3d 1074, 1076 (9th Cir. 1999);

United States v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir. 1997); United States v.

Marin, 961 F.2d 493, 496 (4th Cir. 1992).




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      We need not resolve this issue, because the government neither moved to

dismiss the appeal nor briefed this issue in a meaningful way. Instead, the

government invoked the waiver in a cursory footnote in the “statement of the case”

section of its brief. This was perhaps understandable; the same issue was

presented in the Aunspaughs’ appeal, and the Aunspaughs plainly did not waive

the right to appeal. But understandable or not, the government’s failure to

meaningfully brief the waiver issue waives the issue. See, e.g., Greenbriar, Ltd. v.

City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).

                                         IV

       The Mandatory Victim Restitution Act requires a district court to include

restitution in the sentence for any offense “in which an identifiable victim or

victims has suffered a physical injury or pecuniary loss.” 18 U.S.C.

§ 3663A(c)(1)(B). The proper amount of restitution is the amount of the victim’s

loss, with exceptions not applicable here.

      In addressing the restitution award, we review the district court’s findings of

fact for clear error, and we review its conclusions of law de novo. See, e.g., United

States v. Foley, 508 F.3d 627, 632 (11th Cir. 2007). The district court found, and

the record amply demonstrates, that GUS suffered a loss. For each pole Mr. Rolen

straightened, GUS paid Ener-Phase $225, when the most reasonable inference

from the undisputed facts is that GUS could have hired Mr. Rolen directly for $75

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per pole. There is no apparent reason why Mr. Rolen would have been unwilling

to accept the same $75 per pole for doing this work honestly and above board that

he was willing to accept for doing it on the sly.

      Calculating restitution awards is not exact science. Those engaged in

criminal conduct rarely keep books that allow a precise calculation. Here, the

record apparently does not show the precise number of poles Mr. Rolen

straightened or who wound up with every dollar GUS paid out. The best numbers

available at the restitution hearing were these: Mr. Hale received $229,986.06, and

Ener-Phase’s take, after paying Mr. Rolen and Mr. Hale, was $506,738.43.

Adding these together, the district court found that GUS suffered a loss of

$736,724.49. Mr. Hale questions the methodology but not the arithmetic.

      On these facts, the methodology was sound. So, apparently, was the

arithmetic. The district court’s finding that GUS suffered a loss in this amount was

not clearly erroneous.

      The methodology can be explained in two ways, both resting on the

reasonable inference that GUS could have hired Mr. Rolen directly for the same

price Mr. Rolen charged Ener-Phase. The first explanation is this. Had GUS hired

Mr. Rolen directly, GUS would have saved the amount of the payments that

ultimately wound up in the pockets of both Ener-Phase ($506,738.43) and Mr.




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Hale ($229,986.06). These are the amounts the district court added to arrive at its

restitution award.

      The second explanation takes a different route to the same destination. GUS

paid Ener-Phase to do the work but could have hired Mr. Rolen. The amount GUS

could have saved by hiring Mr. Rolen is the difference between the gross amount

GUS paid to Ener-Phase and the amount Ener-Phase paid to Mr. Rolen.

Calculating the restitution award this way would produce the same result as the

first calculation, because the amount paid out by GUS all wound up in the pocket

of Ener-Phase, Mr. Rolen, or Mr. Hale.

      To be sure, GUS may be obligated to return some or all of the restitution

amount to FEMA or to GUS’s employee-dishonesty insurer. But it often happens

that a victim recovers some or all of the loss from an insurer or from another

source. A restitution order need not address subrogation rights. The essential fact

is that these poles could have been straightened at a savings of $736,724.49. It was

GUS, nobody else, who overpaid by that amount, at least in the first instance. Mr.

Hale’s obligation is to pay restitution for that loss.

                                           IV

      For these reasons, the district court’s judgment is affirmed.




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