     Case: 13-10246       Document: 00512732988         Page: 1    Date Filed: 08/13/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                      No. 13-10246                              FILED
                                                                          August 13, 2014
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA                                                        Clerk

                                                  Plaintiff – Appellee
v.

JESSICA CHRISTINE BAGLEY

                                                  Defendant – Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-188-1


Before DAVIS, ELROD, and COSTA *, Circuit Judges.
PER CURIAM:**
       This appeal presents the question whether the district court committed
plain error when it ordered Jessica Christine Bagley to pay restitution based
on conduct beyond her offense of conviction.




       * Judge Costa participated by designation in this case as a United States District
Judge for the Southern District of Texas. Since that time, he has been appointed as a Fifth
Circuit Judge.
       ** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-10246
                                       I.
      Bagley pleaded guilty to one count of possessing a forged and counterfeit
security in violation of 18 U.S.C. § 513(a). The security at issue was a blank
counterfeit check. It was one of many that Bagley and others had created using
stolen identities.
      Although the count to which she was pleading guilty involved a blank
check and thus caused no loss, the factual resume Bagley signed at the plea
colloquy stated that the penalty for her conviction may include “restitution to
victims . . . which the defendant agrees may include restitution arising from
all relevant conduct, not limited to that arising from the offense of conviction
alone.” The district court also orally confirmed this understanding before
Bagley entered her plea.
      The Presentence Report (PSR) noted that restitution is ordinarily limited
to the offense of conviction, but characterized Bagley’s acknowledgement in the
factual resume as an agreement that she would “pay restitution as a result of
all relevant conduct.” The relevant conduct assessment, which was also used
to determine Bagley’s Sentencing Guidelines range, found $7,918.57 in actual
loss attributable to counterfeit checks that were used during the scheme.
Bagley did not object to either this calculation or the PSR’s recommendation
that restitution should include relevant conduct. The district court followed
the PSR and ordered Bagley to pay restitution of $7,918.57.


                                      II.
      Because Bagley challenges the restitution order for the first time in this
appeal, we review for plain error. To demonstrate plain error, an appellant
must show an error that is clear and obvious and that affected her substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009) (citing United States
v. Olano, 507 U.S. 725, 732–34 (1993)). If the appellant makes such a showing,
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                                 No. 13-10246
this court has the discretion to remedy the error, but should do so only if the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      We first consider whether it was error to impose restitution based on
relevant conduct.     “The general rule is that a district court can award
restitution to victims of the offense, but the restitution award can encompass
only those losses that resulted directly from the offense for which the defendant
was convicted.” United States v. Maturin, 488 F.3d 657, 660–61 (5th Cir. 2007).
If the offense is conspiracy or a crime such as wire fraud that includes a
“scheme” as an element, harm resulting from the entire charged conspiracy or
scheme may be included. 18 U.S.C. § 3663(a)(2); United States v. Cothran, 302
F.3d 279, 289 (5th Cir. 2002). The PSR describes a conspiracy and scheme in
which Bagley participated, but she pleaded guilty to the discrete offense of
possessing a forged and counterfeit security. The offense of conviction thus did
not support awarding restitution for all relevant conduct.
      A court may, however, award restitution to victims of conduct beyond the
offense of conviction “if agreed to by the parties in a plea agreement.” 18 USC
§ 3663(a)(1)(A).    The government contends that Bagley’s written and oral
acknowledgement at the plea colloquy constituted such an agreement. But this
court rejected such an argument earlier this year, holding that a similar
statement in a factual resume was not a plea agreement. See United States v.
Benns, 740 F.3d 370, 378 (5th Cir. 2014). The government, which noted Benns
in a Rule 28(j) letter, argues that Bagley’s more frequent acknowledgements
that she could be subject to restitution based on relevant conduct (both at the
colloquy and in failing to object to the PSR) warrants a different result here.
It remains the case, however, that there was no exchange of consideration that
characterizes a plea agreement. Benns thus controls, rendering the restitution
order an error that was “clear and obvious.” Id. at 377.
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                                  No. 13-10246
      Because the error resulted in Bagley having to pay restitution the law
does not require, it affected her substantial rights. United States v. Inman,
411 F.3d 591, 595 (5th Cir. 2005).
      That leaves the final consideration under Olano—whether the error
affected the fairness, integrity, or public reputation of the judicial proceeding.
Contrary to the government’s assertion, Benns did find that the restitution
error in that case met this standard. 740 F.3d at 378 (“When a defendant is
ordered to pay restitution in an amount greater than the loss caused, the error
affects substantial rights as well as the fairness and integrity of the judicial
proceeding.” (quoting United States v. Austin, 479 F.3d 363, 373 (5th Cir.
2007))). There is a distinction, however: Benns ordered restitution based on a
relevant conduct calculation that was found to be erroneous, whereas in this
case Bagley has never disputed that her relevant conduct caused loss in the
amount of $7,918.57. Although the former situation has a greater impact on
the fairness and integrity of the proceeding, our court has vacated restitution
orders on plain-error review that imposed restitution beyond the count of
conviction even when the relevant conduct calculation was correct. See Inman,
411 F.3d at 595 (finding that a restitution order for a wire fraud conviction that
included loss beyond the charged dates of the scheme warranted reversal under
Olano); see also, e.g., United States v. Mason, 722 F.3d 691, 694–95 (5th Cir.
2013) (same for a mortgage fraud conviction). That precedent warrants the
same result in Bagley’s case.


                                       III.
      For the reasons stated above, we VACATE the district court’s order of
restitution and REMAND to the district court for modification consistent with
this opinion.


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