     Case: 14-60313      Document: 00513452336         Page: 1    Date Filed: 04/05/2016




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

                                    No. 14-60313
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                             April 5, 2016
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

H. CLAIBORNE FRAZIER,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:12-CR-141


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       H. Claiborne Frazier pleaded guilty, pursuant to a plea agreement
containing an appeal waiver, to conspiracy to commit bank fraud, mail fraud,
and wire fraud and was sentenced to 60 months of imprisonment, to be followed
by three years of supervised release. He was also ordered to pay $8,540,596 in
restitution. Frazier now appeals. He argues that the Government breached
the plea agreement by advocating for the inclusion of relevant conduct in


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60313

determining his offense level; therefore, Frazier argues that he should have
been allowed to withdraw his guilty plea.
      Frazier may raise an argument that the Government breached the plea
agreement despite the waiver provision. See United States v. Keresztury, 293
F.3d 750, 756-57 (5th Cir. 2002) (holding that when the Government has
breached a plea agreement, the defendant is necessarily released from any
appeal waiver provision contained therein).        Whether the Government’s
conduct violated the terms of the plea agreement is a question of law, which
we review de novo. United States v. Saling, 205 F.3d 764, 766 (5th Cir. 2000).
      In determining whether the terms of a plea bargain agreement have been
violated, we assess whether the Government’s conduct is consistent with the
parties’ reasonable understanding of the agreement.           United States v.
Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). If the Government breached the
plea agreement, the defendant may seek one of two remedies: (1) withdrawal
of his guilty plea or (2) specific performance of the plea agreement, which would
require resentencing by a new judge. Id.
      The record reflects that the terms of the plea agreement were clear. The
Government agreed to limit the overt acts included in the factual basis but
there was no restraint on the consideration of relevant conduct for sentencing
purposes. The plea agreement specifically stated that relevant conduct would
be considered. The plea agreement also stated that Frazier was “liable to make
restitution for the full amount of the loss determined by the Court, to include
relevant conduct, which amount is not limited to the count of conviction.”
Additionally, at rearraignment, the district court informed Frazier of the
inclusion of relevant conduct for sentencing purposes. The Government did
not breach the plea agreement by supporting enhancements based on relevant
conduct, and Frazier was not entitled to withdraw his guilty plea.           See



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Gonzalez, 309 F.3d at 886; see also United States v. Hoster, 988 F.2d 1374, 1378
(5th Cir. 1993) (holding that the Government did not breach its agreement not
to prosecute the defendant for additional offenses when presentence report
included uncharged drugs as offense conduct).
      Frazier also contends that the amount of restitution ordered by the court
was not based on sufficient evidence. He argues that the Government failed to
prove the amounts awarded and failed to establish that Frazier was part of the
relevant conduct considered in determining the restitution amount.          The
Government argues that this argument is barred by Frazier’s valid appeal
waiver. Frazier argues that the appeal waiver does not bar his challenge to
the restitution order because an award of restitution based on insufficient
evidence results in a sentence above the statutory maximum. Because the
record shows that a potential restitution order was discussed at rearraignment
and at sentencing and because the plea agreement defined “Sentence” to
include restitution, the appeal waiver bars Frazier’s challenge to the amount
of the restitution order. See United States v. Keele, 755 F.3d 752, 755-56 (5th
Cir. 2014).
      Additionally, Frazier did not specifically reserve the right to appeal a
sentence exceeding the statutory maximum. Issues waived in a valid and
enforceable waiver need not be considered on direct appeal. United States v.
Bond, 414 F.3d 542, 546 (5th Cir. 2005).
      Even if we were to apply an exception to Frazier’s appeal waiver to allow
a challenge to a sentence exceeding the statutory maximum, his arguments do
not fall within such an exception. “The [Mandatory Victims Restitution Act]
MVRA does not permit restitution awards to exceed a victim’s loss.” United
States v. Beydoun, 469 F.3d 102, 107 (5th Cir. 2006). Frazier’s argument that
he was not responsible for certain restitution amounts because the



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Government did not adequately prove that he jointly undertook the actions in
the conspiracy is not a challenge to the sentence exceeding the statutory
maximum because this argument does not contend that the amount awarded
exceeds the victim’s losses. See United States v. Sharma, 703 F.3d 318, 322
(5th Cir. 2012) (“An award of restitution greater than a victim’s actual loss
exceeds the MVRA’s statutory maximum.”). Because the statute does not
provide that offsets may be used in determining the amount of actual loss,
Frazier’s argument that the district court failed to consider evidence of
payments made to the victims in the form of settlements and other repayments
does not constitute a challenge to a sentence in excess of the statutory
maximum.      See 18 U.S.C. § 3664(f)(1)(B); Sharma, 703 F.3d at 322.
Accordingly, Frazier’s knowing and voluntary appeal waiver bars his challenge
to the restitution order. See Keele, 755 F.3d at 755-56.
      The judgment of the district court is AFFIRMED.




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