                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                             February 3, 2006
                                   TENTH CIRCUIT                           Elisabeth A. Shumaker
                                                                               Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                         No. 04-5180
                                                     (D.C. No. 04-CR-103-JHP)
 ABBY LYNN VOSS,                                   (Northern District of Oklahoma)

          Defendant-Appellant.




                                ORDER AND JUDGMENT*


Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge. and KELLY,
Circuit Judge.

      On June 10, 2004, Abby Lynn Voss, the defendant, was charged in a one-count

indictment with possession of stolen mail, knowing the mail had been stolen, in violation

of 18 U.S.C. § 1708. On July 28, 2004, the defendant pled guilty to that charge, pursuant

to a plea agreement with the government. On November 3, 2004, the defendant was

sentenced to 30 months imprisonment, to be followed by three years of supervised release

and was also ordered to pay as restitution the sum of $15,772.62. On November 12,

2004, defendant filed a notice of appeal. On appeal, the defendant raised one issue,


      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
namely whether the district court erred in ordering the defendant to make restitution in the

amount of $15,772.62, instead of the sum of $5,000.00, the latter being the sum the

defendant admits she owes her victims.

       On December 21, 2004, the United States filed in this Court a “Motion to

Enforce Plea Agreement,” asking that this Court enforce the plea agreement between the

government and the defendant, wherein, according to the government, the defendant

“waived her right to appeal.” On March 25, 2005, another panel of this Court denied the

government’s Motion to Enforce Plea Agreement, holding that “this appeal is not within

the scope of the waiver . . . ,” and citing United States v. Hahn, 359 F3d. 1315 (10th Cir.

2004). That panel then ordered that “briefing on the merits shall proceed.” After

briefing, the present panel heard oral argument on September 16, 2005.

       As stated, the only issue raised in this appeal the defendant frames as follows:

“Did the trial court abuse its discretion when it ordered Abby Voss to pay $15,772.62, in

restitution instead of the sum of $5,000, which she admits and claims should be her

maxim (sic), as did the Government at her Plea of Guilty?” We answer that question in

the negative.

       As mentioned, the defendant pled guilty to having in her possession letters and

mail matter which had been stolen from the U.S. Mail, knowing that such had been

stolen. From the presentence report, we learn that the defendant, and several others, some

of whom were separately indicted, were a “ring” that had been stealing mail from


                                            -2-
residential mail boxes which “had the flag out.” The defendant, and the others, then

“altered” some of the stolen checks, “counterfeited” other stolen checks, and passed them,

or attempted to pass them, to various business establishments.

       At the change of plea hearing, the government apparently informed the magistrate

judge that the defendant’s loss “should probably be no more than $5,000.” In connection

with restitution, the plea agreement itself contained the following:

              C. Restitution

              The Court can order the Defendant to pay restitution for the
              full loss caused by Defendant’s conduct set forth above. The
              Defendant agrees the Court’s consideration of the amount of
              restitution shall NOT be limited to the amounts alleged in the
              counts to which the Defendant is pleading guilty, and may
              include stipulated amounts as set forth below pursuant to Title
              18, U.S.C. § 3663. The Defendant further agrees that any
              amount ordered by the Court to be paid as restitution may not
              be discharged, in whole or in part, in any bankruptcy
              proceeding.

              If the offense of conviction occurred after April 24, 1996,
              restitution is mandatory without regard to the Defendant’s
              ability to pay.

       Also, at the change of plea hearing, the following colloquy between the district

court and the defendant occurred:

              THE COURT: Okay. Do you understand that the Court has
              not participated in any way, in any discussions regarding your
              plea and the Court is not bound by the plea agreement?

              THE DEFENDANT: I understand.

              THE COURT: Okay. Do you further understand that the

                                            -3-
               terms of the plea agreement are merely recommendations to
               the Court and the Court can reject the recommendations
               without permitting you to withdraw your plea of guilty and
               impose a sentence that is more severe than you may
               anticipate?

               THE DEFENDANT: Yes.

       The defendant later objected to the recommendation in the presentence report that

the defendant pay restitution in the amount of $15,772.62. A hearing was later held on

this objection. During that hearing, the following colloquy occurred between the Court

and defense counsel:

              THE COURT: The question I have is if when your client
              entered her plea of guilty, she agreed to pay restitution or (sic)
              all relevant conduct?

              MR. SHORT: That’s right, she did.

              THE COURT: And that’s still her position, your position
              today?

              MR. SHORT: We talked about that at the time we went over
              the plea agreement, Your Honor, and I said, “I don’t know
              what that is going to amount to, Ms. Voss.” And she said,
              “Well, I’m not sure I do either.” (Emphasis added.)

       It was in this general setting that the district court overruled the defendant’s

objection and ordered the plaintiff to pay restitution in the amount of $15,772.62.1



        1
         18 U.S.C. § 3664(e) provides that “Any dispute as to the proper amount or type of
restitution shall be resolved by the court by the preponderance of the evidence. The
burden of demonstrating the amount of the loss sustained by a victim as a result of the
offense shall be on the attorney for the Government.”

                                             -4-
         We reject out of hand any suggestion that the district court was somehow bound by

the prosecutor’s off-hand statement at the change of plea hearing that any restitution order

would “probably” be in the amount of $5,000.00. Defense counsel and the defendant were

fully and forcefully informed by the district court that the district court, the court

not being a party to the plea agreement, was not bound by the terms of the agreement, and,

such being the case, it would follow that it would not be bound by “predictions” made by

government counsel concerning the agreement. The agreement speaks for itself. In this

general regard, it is, of course, well established that in sentencing a defendant in a criminal

proceeding, the district court is not bound by the plea agreement, let alone statements

made by defense counsel, or the government, in connection with a defendant’s entry of a

plea of guilty pursuant to a plea agreement. See generally, United States v. Vance, 868

F.2d 1167 (10th Cir. 1989) and United States v. Medina, 4 Fed. Appx. 595 (10th Cir.

2001).

         In overruling the defendant’s objection to the presentence report, the district court

held that the defendant had, in fact, participated in cashing, or attempting to cash the

checks in question, whether they were “altered” checks or “counterfeited” checks. In this

regard, we would note that 18 U.S.C. § 3664(h) provides as follows:

                If the court finds that more than 1 defendant has contributed to
                the loss of a victim, the court may make each defendant liable
                for payment of the full amount of restitution or may apportion
                liability among the defendants to reflect the level of
                contribution to the victim’s loss and economic circumstances
                of each defendant.

                                               -5-
       As above stated, the defendant’s only argument on appeal is that the district court

“abused its discretion” in ordering restitution in the amount of $15,772.62. We review an

order of restitution for abuse of discretion. United States v. Reano, 298 F.3d 1208, 1210

(10th Cir. 2002). We now hold that, under the described circumstances, the district court

did not abuse its discretion. The defendant was a part of a check ring operated in concert

with several others. The defendant, apparently, primarily “altered” stolen checks, and

others in the ring “counterfeited” stolen checks, but all were involved, one way or another,

in passing the checks, and were clearly part of a “common scheme.” In this connection,

counsel in his brief concedes that the defendant did, in fact, participate, at least to a limited

degree, in passing some counterfeited checks. In any event, all things considered, the

district court did not abuse its discretion.

       Judgment affirmed.



                                               Entered for the Court



                                               ROBERT H. McWILLIAMS
                                               Senior Circuit Judge




                                                -6-
