           Case: 18-14951   Date Filed: 04/09/2020   Page: 1 of 7



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-14951
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:17-cr-60286-BB-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

DANIEL JOSEPH TOUIZER,

                                                         Defendant-Appellant.

                      ________________________

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

                             (April 9, 2020)

Before WILLIAM PRYOR, GRANT and LUCK, Circuit Judges.

PER CURIAM:
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      Daniel Touizer appeals his conviction and sentence of 68 months of

imprisonment following his plea of guilty to conspiring to commit mail and wire

fraud in a fraudulent investment scheme. 18 U.S.C. § 1349. Touizer argues, for the

first time, that his plea of guilty was entered unknowingly and involuntarily and

lacks a factual basis. Touizer also challenges the enhancement of his sentence for

the amount of loss and his restitution and forfeiture orders despite his sentence

appeal waiver because, he contends, the government breached its plea agreement.

Touizer also contends that the district court lacked jurisdiction to enter its final

order of forfeiture three months after sentencing him. We affirm.

      Two standards of review govern this appeal. First, because Touizer failed to

move to withdraw his plea of guilty as unknowing or involuntary, to argue that his

plea lacked a factual basis, or to assert that the government breached the plea

agreement, we review those issues for plain error. See United States v. Moriarty,

429 F.3d 1012, 1019 (11th Cir. 2005) (validity of guilty plea); United States v.

Romano, 314 F.3d 1279, 1281 (11th Cir. 2002) (breach of plea agreement). Under

that standard, Touizer must prove that error occurred that was plain and affected

his substantial rights. Id. Second, we review de novo whether Touizer waived his

right to appeal his sentence, United States v. Bushert, 997 F.2d 1343, 1352 (11th

Cir. 1993), and whether the district court had jurisdiction to enter its final order of

restitution, see United States v. Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009).


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      The district court did not plainly err by accepting Touizer’s plea of guilty as

made knowingly and voluntarily. Touizer argues that he was fraudulently induced

to plead guilty based on statements from a prosecutor and a forensic accountant

concerning how much Touizer misappropriated from victims’ investments in

Protectim. But the statements were made during detention proceedings held more

than a month before Touizer’s indictment and would not have influenced him to

plead guilty to misappropriating victims’ investments in Omni Guard, LLC,

Infinity Diamonds, LLC, Covida Holdings, LLC, Wheat Capital Management,

LLC, and Wheat Self-Storage Partners I, II, and III. Indeed, Touizer stated in his

written plea agreement that “nobody forced, threatened, or coerced him to plead

guilty” and that “[t]here are no other agreements, promises, representations, or

understandings” that influenced his decision to plead guilty. Touizer also argues he

pleaded guilty without full knowledge of the government’s evidence of his

“financial misdeeds,” but during the plea colloquy, Touizer verified he had

received and reviewed with counsel “all the discovery in this case,” including

forensic and investigative reports, financial documents, and potential witnesses.

We presume that Touizer’s statements were true. See United States v. Medlock, 12

F.3d 185, 187 (11th Cir. 1994). If Touizer made “strategic miscalculations

concerning the evidentiary strength of the government’s case,” his error “did not

impugn the truth or reliability of his plea” because his plea agreement and


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statements during his change of plea hearing establish that he made an informed

and intelligent decision to plead guilty. See United States v. Brown, 117 F.3d 471,

476 (11th Cir. 1997). The record supports the finding of the district court that

Touizer understood the case against him before he pleaded guilty.

      The district court also did not plainly err in finding that a factual basis

supported Touizer’s plea of guilty. To convict, the government had to prove that

Touizer agreed to participate in a scheme to misrepresent, omit, or conceal facts

material to his investors using the mail and interstate wires. See United States v.

Feldman, 931 F.3d 1245, 1257–58 (11th Cir. 2019); United States v. Maxwell, 579

F.3d 1282, 1299 (11th Cir. 2009). Touizer admitted in his factual proffer and

during his change of plea hearing that, between 2010 and 2017, he conspired with

Saul Suster, John Reech, and others to swindle “millions” from people whom he

and his coconspirators duped into buying stock in Touizer’s companies. Touizer

proffered that he provided Suster and Reech lists of potential investors whom they

contacted by telephone, that Suster recruited investors by posing as a successful

investor, that Suster and Touizer lied to potential investors about the use of

investment assets, and that Touizer would “close the deal” with most victims.

Touizer also proffered that he used victims’ money, which he obtained by wire

transfers or in the mail, to pay himself and his coconspirators “undisclosed




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commissions and fees,” to pay dividends to new investors “[t]o create the illusion

of success,” and to “fund[] the startup of [another] investment company.”

      Touizer’s sentence appeal waiver bars his challenges to his sentence

enhancement for the amount of loss and to his restitution and forfeiture orders.

Touizer’s plea agreement provided that he “waive[d] all rights conferred . . . to

appeal any sentence imposed, including any restitution order, forfeiture order or to

appeal the manner in which the sentence was imposed” subject to the following

three exceptions: the sentence exceeded the applicable guidelines range calculated

by the Court; the sentence exceeded the maximum statutory penalty; or the

government appealed the sentence. During his change of plea hearing, Touizer

acknowledged that he had read and understood “every word” of the agreement,

including the sentence appeal waiver, and that no one had coerced or enticed him

to agree to the waiver. Because the record establishes that Touizer knowingly and

voluntarily waived his right to appeal his sentence, see United States v. DiFalco,

837 F.3d 1207, 1215 (11th Cir. 2016), he cannot appeal the aspects of his sentence

barred by that waiver. That the district court told Touizer that he had a right to

appeal is of no moment because a “waiver [that] is enforceable” “cannot be vitiated

or altered by comments the court makes during sentencing.” United States v.

Bascomb, 451 F.3d 1292, 1297 (11th Cir. 2006).




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      Touizer argues that he is not bound by the appeal waiver because the

government breached its plea agreement, but he fails to establish any error, much

less plain error, with respect to the actions of the government. We interpret a plea

agreement using “an objective standard . . . [to ensure that] the government’s

actions are []consistent with what the defendant reasonably understood when he

entered his guilty plea” and “the background of [their] negotiations.” United States

v. Copeland, 381 F.3d 1101, 1105 (11th Cir. 2004) (internal quotation marks

omitted). The record refutes Touizer’s argument that the government failed to

“resolve in good faith [the question of loss] prior to the sentencing hearing.” The

government complied with its agreement to “resolve [the] adjustment” for “the loss

level increase under [section] 2B1.1(b)(1)” of the Sentencing Guidelines by

stipulating to a loss amount between $3.5 million and $9.5 million before

sentencing. The government requested an order of forfeiture consistent with

Touizer’s agreement to forfeit five pieces of real property and twelve items of

personal property and “to the entry of a money forfeiture judgment . . . equal in

value to the property . . . which constitutes or was derived from proceeds traceable

to [his] offense . . . .” And the government acted in good faith when requesting

restitution commensurate with the stipulated loss amount. Touizer admitted in his

factual proffer that his “scheme to defraud . . . raised millions” of dollars. And at

sentencing, he withdrew his objection to the fact in his presentence investigation


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report that his scheme involved more than $19 million. See United States v.

Corbett, 921 F.3d 1032, 1043 (11th Cir. 2019).

      Touizer’s sentence appeal waiver does not bar his argument that the district

court lacked jurisdiction to enter its final order of forfeiture, but his argument lacks

merit. The district court complied with Federal Rule of Civil Procedure 32.2 by

entering a final order of forfeiture as soon as practicable. Touizer was subject to

forfeiture as part of his sentence because his indictment provided notice of a

forfeiture and he agreed to a forfeiture judgment in his plea agreement. See Fed. R.

Crim. P. 32.2(a). The district court, in accordance with Rule 32.2, entered a

preliminary order of forfeiture before sentencing because the parties had not agreed

to the final terms of forfeiture. See id. 32.2(b)(1). And because Touizer agreed at

sentencing to postpone determining the amount of restitution, the district court

“enter[ed] a forfeiture order that state[d] [it] w[ould] be amended under Rule

32.2(e)(1) when . . . the amount of the money judgment has been calculated.” Id.

32.2(b)(2)(C)(iii). Based on Touizer’s knowledge that he was subject to forfeiture,

his consent to prolonging its calculation, and the adherence of the district court to

the procedures established in Rule 32.2, the final order of forfeiture entered after

sentencing constituted a valid amendment to the judgment, which it had retained

authority to enter.

      We AFFIRM Touizer’s conviction and sentence.


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