                                                                                United States Court of Appeals
                                                                                         Fifth Circuit
                                                 In the                              FILED
                         United States Court of Appeals                             April 14, 2006

                                      for the Fifth Circuit                   Charles R. Fulbruge III
                                           _______________                            Clerk

                                             m 04-20990
                                           Summary Calendar
                                           _______________



                                   UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                                VERSUS

                                  MICHAEL MOTILAL MAHARAJ,

                                                              Defendant-Appellant,


                                    _________________________

                            Appeals from the United States District Court
                                 for the Southern District of Texas
                                          m 4:04-CR-79-1
                                  _________________________




Before SMITH, GARZA, and PRADO,                           Michael Maharaj appeals his sentence im-
  Circuit Judges.                                     posed pursuant to a plea agreement in which
                                                      he pleaded guilty of conspiracy to defraud the
JERRY E. SMITH, Circuit Judge:*                       government under 18 U.S.C. § 286 by making
                                                      false, fictitious, or fraudulent claims for federal
                                                      income tax refunds. Maharaj argues that the
                                                      district court affected his substantial rights by
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-   failing to notify him of its authority to order
termined that this opinion should not be published    restitution and by imposing a sentence above
and is not precedent except under the limited cir-
                                                      the maximum indicated at his plea hearing.
cumstances set forth in 5TH CIR. R. 47.5.4.
Because the district court did not commit plain         enforcement of the waiver provision.1 In its
error, we affirm.                                       brief, the government states that it does not
                                                        seek enforcement of the waiver.
                       I.
   The plea agreement provided, inter alia, that            Maharaj argues he is entitled to a reduction
the maximum statutory penalty for violating             in his required payment from $350,338.92 to
§ 286 is $250,000 and that any fine or restitu-         $250,000.00, the maximum amount indicated
tion would be due immediately. The agreement            at his rearraignment hearing, because the court
also contained an appeal waiver, which                  failed to advise him, in violation of Federal
provided that Maharaj surrendered his right to          Rule of Criminal Procedure 11(b)(1)(K), that
appeal his sentence unless the court imposed            he might be required to pay restitution.2 Be-
(1) a sentence above the statutory maximum or           cause Maharaj raises this issue for the first
(2) an upward departure from the sentencing             time on appeal, we review for plain error.3
guidelines that was not requested by the gov-
ernment.                                                    Under plain error review, the defendant
                                                        must show that the district court (1) commit-
   At rearraignment, the court advised Maharaj          ted error (2) that was plain and (3) affected his
that he was subject to a maximum of 10 years’           substantial rights. United States v. Olano, 507
imprisonment and/or a fine of $250,000, a max-          U.S. 725, 732 (1993). Even if we find plain
imum of 3 years’ supervised release, and a              error, we retain discretion whether to correct
special assessment of $100. The court did not           it and generally will decline to do so unless it
advise that it had authority to order him to pay        “seriously affects the fairness, integrity or pub-
restitution. The court read Maharaj the appeal          lic reputation of judicial proceedings.”4
waiver. Maharaj represented that he had read
and that he understood the terms of the plea
agreement, and he signed the agreement on the
record.                                                    1
                                                             See United States v. Story, 439 F.3d 226, 231
                                                        (5th Cir. 2006) (“In the absence of the govern-
   The pre-sentence report indicated that Ma-           ment’s objection to [the defendant’s] appeal based
haraj would be required, inter alia, to make            on his appeal waiver, the waiver is not binding be-
restitution. The court sentenced Maharaj to 78          cause the government has waived the issue.”).
months’ imprisonment, 3 years’ supervised re-
                                                           2
lease, a fine of $125,000.00, restitution jointly            See FED. R. CRIM. P. 11(b)(1)(K) (stating that
and severally with his co-defendants of                 “the court must inform the defendant of, and
$225,238.92, and a $100 special assessment.             determine that the defendant understands . . . the
                                                        court’s authority to order restitution”).
                     II.                                   3
                                                             United States v. Vonn, 535 U.S. 55, 59 (2002)
   A defendant may waive his right to an appeal
                                                        (holding that a defendant who fails to raise rule 11
in a written plea agreement if the waiver is            error at trial “has the burden to satisfy the
informed and voluntary. United States v. Bay-           plain-error rule”).
mon, 312 F.3d 725, 727 (5th Cir. 2002). A
defendant is not bound by an appeal waiver                 4
                                                             United States v. McIntosh, 280 F.3d 479, 482
where the government does not seek                      (5th Cir. 2002) (quoting Olano, 507 U.S. at 736
                                                        (internal quotations omitted)).

                                                    2
    Because the district court violated rule 11 by         terms, and he signed the agreement on the rec-
not informing Maharaj of its authority to order            ord. He also received notice of the possibility
restitution, the court committed error that was            of restitution in his pre-sentence report.6
plain. See Olano, 507 U.S. at 732. Maharaj
relies on United States v. Glinsey, 209 F.3d 386              Second, Maharaj was held jointly and sev-
(5th Cir. 2000), and United States v. Powell,              erally liable with his co-defendants for the full
354 F.3d 362 (5th Cir. 2003), to claim that the            amount of restitution, a fact that decreases the
error affected substantial rights because the to-          likelihood that he would be held personally
tal amount of liability imposed exceeded the               responsible for payment in excess of $250,-
amount that the court advised him would fol-               000.00. See id. at 392 (implying Glinsey was
low as a result of his guilty plea.                        solely responsible for restitution). Third, Glin-
                                                           sey merely stands for the proposition that a
   We have stated, when conducting harmless                judgment equal to the amount announced at
error review, that substantial rights are violated         the plea colloquy cannot, by definition, affect
under rule 11 if “the defendant’s knowledge                a defendant’s substantial rights, because the
and comprehension of the full and correct infor-           defendant received fair notice of that amount
mation would have been likely to affect his                under rule 11. See id. at 395. It does not fol-
willingness to plead guilty.” United States v.             low that a judgment above the notified amount
Johnson, 1 F.3d 296, 298 (5th Cir. 1993) (en               necessarily affects substantial rights. Glinsey’s
banc). In Glinsey, 209 F.3d at 396, in circum-             sentence was substantially further above the
stances nearly identical to these, we adjusted             notified amount than is Maharaj’s. See id. at
the sentence by the difference between the                 395 (noting the additional imposition of
amount the court imposed and the amount it                 $266,317.06). Fourth, and most importantly
warned the defendant he could receive. We                  in the context of plain error review, because
stated that the defendant “is not prejudiced so            Maharaj did not object to the rule 11 violation
long as his liability does not exceed the maxi-            at trial, we are not persuaded that he would
mum amount that the court informed him could               not have pleaded guilty but for the error.
be imposed as a fine.” Id. at 395.5
                                                              Finally, even if Maharaj had established
   Even assuming that Glinsey controls as to               plain error, this case does not present facts
what affects substantial rights in the context of          that “seriously affect[] the fairness, integrity or
plain-error review, we would not find plain er-            public reputation of judicial proceedings.”
ror here. First, Maharaj’s written plea agree-             McIntosh, 280 F.3d at 482. In particular, the
ment, unlike Glinsey’s, specificallymentions the           fact that Maharaj received notice of the possi-
possibility of restitution. See id. at 394. Ma-
haraj indicated he read and understood the
                                                              6
                                                                Maharaj notes that in Powell the defendant
                                                           had also received notice of restitution in his plea
   5
      See also Powell, 354 F.3d at 370 (stating that       agreement and pre-sentence report. See id. at 367.
failure to disclose the possibility of restitution         But Powell does not control, because the court had
“could be harmful error when the quantum of that           no occasion to modify the judgment, given that the
restitution exceeds the liability amount used by the       amount ultimately imposed was less than the
court in notifying the defendant as to the conse-          amount announced to the defendant during the plea
quences of his guilty plea.”).                             colloquy. See id. at 369.

                                                       3
bility of restitution in his pre-sentence report
and written plea agreement convinces us that
the district court afforded him adequate due
process.

   AFFIRMED.




                                                   4
