     Case: 18-20550      Document: 00515323265         Page: 1    Date Filed: 02/27/2020




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

                                    No. 18-20550
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                     February 27, 2020
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


                                                 Plaintiff-Appellee

v.

ASHVINBHAI CHAUDHARI,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 4:16-CR-385-24


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Ashvinbhai Chaudhari pleaded guilty to conspiracy to commit money
laundering, in violation of 18 U.S.C. § 1956(h), and was sentenced to 87 months
of imprisonment, followed by a three-year term of supervised release. He was
also ordered to pay $8,970,396.15 in restitution. For the first time on appeal,
he argues that the district court erred in denying the Government’s motion for
a downward departure under U.S.S.G. § 5K1.1, p.s., that the within-guidelines


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20550

sentence imposed is unreasonable, and that the restitution award is excessive.
The Government responds that the arguments are barred by the waiver-of-
appeal provision in the written plea agreement.
      Review of the record reflects that Chaudhari knew he had a right to
appeal and was giving up that right as part of his plea, and thus that his appeal
waiver was knowing and voluntary. See United States v. Higgins, 739 F.3d
733, 736 (5th Cir. 2014); see also FED. R. CRIM. P. 11(b)(1)(N). Chaudhari now
asserts, for the first time, that the waiver should not apply due to the district
court’s failure at rearraignment to admonish him correctly under Federal Rule
of Criminal Procedure 11. We review these arguments for plain error only. See
United States v. Oliver, 630 F.3d 397, 411 (5th Cir. 2011).
      Although Chaudhari complains that he was never informed that the
district court could deny the Government’s § 5K1.1 motion, Rule 11 does not
require such an admonishment. See FED. R. CRIM. P. 11(b). His assertion that
he was not advised of the nature of the charges to which he was pleading is
belied by the record, which shows that the district court advised him of the
elements of the charge to which he was pleading guilty and confirmed that
Chaudhari understood. See FED. R. CRIM. P. 11(b)(1)(G).
      To the extent that Chaudhari asserts that the plea agreement and
waiver are not binding because the district court did not advise him of its
authority to order restitution, the argument is unavailing.       Although the
district court clearly erred in failing to admonish Chaudhari of its authority to
order restitution, see FED. R. CRIM. P. 11(b)(1)(K), Chaudhari has not
demonstrated a reasonable probability that, but for the error, he would not
have pleaded guilty. See United States v. Dominguez Benitez, 542 U.S. 74, 83
(2004). The written plea agreement, which Chaudhari confirmed he had read
and understood, specifically informed him of the court’s authority to order



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                                 No. 18-20550

restitution and further stipulated that Chaudhari would be responsible for a
guideline loss amount between $3,500,000 and $9,500,000.          Additionally,
Chaudhari was advised of the amount of restitution prior to sentencing; the
district court announced the amount at sentencing; and Chaudhari raised no
objection. Consequently, in view of the entire record, Chaudhari’s decision to
plead guilty was an informed one, and the Rule 11 omission did not affect his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009);
Dominguez Benitez, 542 U.S. at 83.
      Inasmuch as Chaudhari asserts that the Government is judicially
estopped from enforcing the appellate waiver, the argument is meritless even
if the doctrine of judicial estoppel applies in criminal cases. See Zedner v.
United States, 547 U.S. 489, 503-06 (2006). The Government’s invocation of
the waiver-of-appeal provision is not clearly inconsistent with its having filed
a § 5K1.1 motion for a downward departure in the district court. See Gabarick
v. Laurin Mar. (Am.) Inc., 753 F.3d 550, 553 (5th Cir. 2014).
      By its terms, Chaudhari’s valid and enforceable waiver bars his claims
that the district court erred in denying the § 5K1.1 motion and that his
sentence is unreasonable. Accordingly, we DISMISS the appeal IN PART
pursuant to the waiver. Because we have addressed the merits of Chaudhari’s
restitution argument in the course of assessing the waiver’s enforceability, we
AFFIRM IN PART the judgment of the district court with respect to the
restitution order.




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