     Case: 14-30324      Document: 00512940656         Page: 1    Date Filed: 02/19/2015




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

                                                                                    FILED
                                      No. 14-30324                           February 19, 2015
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                 Plaintiff - Appellee
v.

STEPHANIE BEVON, also known as Stephanie Hill,

                                                 Defendant - Appellant




                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CR-168


Before KING, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Stephanie Bevon challenges the portion of the district court’s restitution
order that requires her to pay $2,300 to HSBC Bank USA. For the following
reasons, we VACATE the restitution award to HSBC Bank USA, and AFFIRM
all other aspects of the district court’s judgment.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30324


       I.      FACTUAL AND PROCEDURAL BACKGROUND
      On July 30, 2013, Appellant-Defendant Stephanie Bevon was charged in
a criminal information with mail fraud, in violation of 18 U.S.C. § 1341; wire
fraud, in violation of 18 U.S.C. § 1343; and bank fraud, in violation of 18
U.S.C. § 1344. Bevon waived her right to be charged by an indictment, and,
pursuant to a written plea agreement, pleaded guilty to all three counts in the
information. Bevon waived her right to appeal or collaterally challenge her
conviction or sentence, including any order of restitution imposed “under any
applicable restitution statute,” but she reserved the right to appeal “any
sentence imposed in excess of the statutory maximum.”
      The factual basis and presentence report (“PSR”) described Bevon’s
conduct as follows. Bevon was hired by Rebowe and Company, an accounting
firm, in January 2008 to serve as Phillip Rebowe’s administrative assistant.
Rebowe is a senior partner at Rebowe and Company, where he manages
several of the company’s accounts. Bevon’s duties included retrieving mail for
the company and distributing the mail to other employees.
      On July 10, 2008, Bevon applied for a Discover credit card using
Rebowe’s personal identifying information. In November 2008, a Discover
credit card statement was sent to Rebowe’s office. Rebowe knew that he had
not applied for a Discover credit card; however the statement showed that he
was late on payments. After speaking with a representative in Discover’s fraud
department, Rebowe realized that the card was opened without his
authorization or consent.   The credit card had a balance of $3,500.       The
fraudulent opening of the Discover credit card account formed the basis of the
mail fraud count.
      On October 7, 2008, Bevon made a wire transfer in the amount of
$72,329.77 from an account at Omni Bank belonging to one of Rebowe and
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                                 No. 14-30324
Company’s clients to a legal trust account by forging Rebowe’s signature. The
legal trust account belonged to Seth Bloom, an attorney who had represented
Bevon in a prior theft-related criminal charge in Orleans Parish Criminal
District Court. Bevon wired Bloom the $72,329.77 to pay restitution in the
prior criminal case. This fraudulent wire transfer formed the basis of the wire
fraud count.
      Also in 2008, Bevon engaged in a fraudulent scheme to repurchase her
home in Metairie, Louisiana, which was foreclosed on in 2006. In early 2008,
Bevon made contact with the real estate company that had listed her foreclosed
home. Bevon told the real estate company that she wanted her aunt, Estelle
DeSilva, to repurchase the foreclosed home. However, DeSilva was not Bevon’s
aunt; she was a friend that Bevon had met at a sports bar several years earlier.
Bevon told the mortgage company that had listed the foreclosed property that
DeSilva would be purchasing the property. Bevon further told the mortgage
company that Cercre Spence, DeSilva’s daughter, would have a power-of-
attorney and would consummate all transactions related to the purchase of the
foreclosed property. Spence was also Bevon’s friend and neighbor. Bevon went
to the Office of Motor Vehicles and fraudulently obtained a duplicate driver’s
license in Spence’s name that included Spence’s identifying information but
Bevon’s picture. Next, acting as Spence, Bevon fraudulently obtained a power-
of-attorney for DeSilva.
      During the negotiations for the purchase of the property, Bevon used the
identity of Michelle Akin, an acquaintance of Bevon’s who worked for Omni
Bank. Bevon created a fake email account in Akin’s name, and represented
that Akin was the branch manager of Omni Bank. Using this email account,
Bevon sent a fraudulent pre-approval letter via email to the title company
indicating that DeSilva had been approved for a home loan through Omni
Bank for the purchase of the foreclosed property.
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      On July 8, 2008, Bevon attended the closing on the property, pretending
to be Spence. Bevon used the fraudulent driver’s license in Spence’s name, and
forged all of the loan documents on DeSilva’s behalf. On July 11, 2008, in order
to complete the closing on the property, Bevon wired $113,000 from Judge
Ellen Kovach’s account at Omni Bank, which was managed by Rebowe and
Company, to an escrow account at Capital One bank belonging to Title2Land,
L.L.C. Bevon accomplished this wire transfer by forging the signature of
Rebowe. Rebowe discovered the unauthorized wire transfer in October 2008;
shortly thereafter, he restored the $113,000 to Judge Kovach’s account.
      Following the closing, a closing costs refund check for $5,541.53 was sent
by J.P. Morgan Chase to Bevon’s grandmother’s address. Bevon’s grandmother
received the check; however, she mailed it back when she saw that it was
addressed to DeSilva. Next, the check was mailed to Spence’s address, where
Bevon was able to retrieve it and deposit it into her personal checking account.
Bevon’s fraudulent scheme to repurchase her foreclosed home formed the
factual basis of the bank fraud count contained in the information.
      In addition to the conduct underlying the three counts of conviction, the
probation officer reported in the PSR 1 that after Bevon had moved back into
her home, she received a pre-approved HSBC Bank USA (“HSBC”) credit card.
The HSBC credit card had been mistakenly delivered to the wrong address by
the postal service and was actually intended for and addressed to Bevon’s
neighbor, Spence. On July 9, 2009, Bevon activated the card. Using the card,
Bevon made fraudulent purchases of beer and other items totaling $2,300
between August and December 2008.




      1   Even though the HSBC credit card fraudulent purchases were not charged in the
Bill of Information, the PSR describes the purchases under the “Offense Conduct” section of
the PSR and lists HSBC Card Services under the “Victim Impact” section.
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                                No. 14-30324
      In the plea agreement, the parties agreed that the restitution provisions
of 18 U.S.C. § 3663 and § 3663A applied. The probation officer reported that,
for purposes of the Mandatory Victim’s Restitution Act (“MVRA”), 18 U.S.C.
3663A, JP Morgan Chase Bank had suffered an actual loss of $5,541.53, HSBC
Card Services had suffered an actual loss of $2,300, and Rebowe had suffered
an actual loss of $113,000. The PSR explained that Bevon had a total offense
level of 16 and a criminal history category of I, leading to a guideline
imprisonment range of 21 to 27 months.
      Bevon objected to the PSR, arguing that she did not owe $113,000 to
Rebowe because the money had been returned to the company once the
foreclosed home was sold. The day prior to sentencing, the probation officer
submitted a letter to the court amending the breakdown of the restitution owed
by Bevon. As an attachment to the letter, Rebowe submitted a statement of
loss. Rebowe stated that it had restored in full the $113,000 that Bevon had
fraudulently transferred from Judge Kovach’s account at Omni Bank.
Subsequently, a settlement was reached between Rebowe and Company, Omni
Bank, and Rebowe and Company’s insurance company. Omni Bank agreed to
accept $75,000 in lieu of the $113,000, the insurance company paid $45,000,
and Rebowe and Company paid $9,539.15, with the remaining balance being
paid with the proceeds of the sale of the property. Consequently, the probation
officer recommend that restitution be ordered as follows: JP Morgan Chase
Bank, $5,541.53; HSBC, $2,300; Rebowe, $9,539.15; Omni Bank, $38,000; and
CAMICO Mutual Insurance Company, $45,000.
      On March 19, 2014, the district court held a sentencing hearing. The
district court asked Bevon whether she had received the letter from the
probation officer regarding restitution. Bevon stated that she understood the
letter and that she had discussed it with her attorney. The district court
adopted the findings contained in the PSR. The district court stated that when
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                                  No. 14-30324
it ordered restitution, counsel should make certain it had accounted for “each
item that belongs to the restitution as well as the correct amount.” The district
court sentenced Bevon to 27 months of imprisonment on each count, the
sentence to be served concurrently, and a total of five years of supervised
release. The district court ordered that Bevon pay restitution in the total
amount of $100,380.68 as specified in the probation officer’s letter. The district
court broke down the amount of restitution ordered to each entity in open court
as follows: JP Morgan Chase Bank, $5,541.53; HSBC, $2,300; Rebowe and/or
Rebowe and Company, $9,539.15; Omni Bank, $38,000; and Camico Mutual
Insurance Company, $45,000. After announcing these amounts, the district
court stated that it was “going to order that the defendant pay that restitution
unless counsel on both sides tells me that either those numbers are incorrect,
the payees are incorrect, or the total is incorrect.”      Counsel for both the
Government and Bevon agreed that the restitution award was correct.
      Following the entry of written judgment, the district court granted
Bevon an extension of time to file a notice of appeal. Bevon subsequently filed
a timely notice of appeal.
                     II.     STANDARD OF REVIEW
      The parties dispute whether we should review the HSBC restitution
award de novo or for plain error.      This court’s precedent on this issue is
conflicting. We have previously applied de novo review to a claim that a
restitution order was illegal, which is the claim that Bevon raises here, even
where an objection was not raised at sentencing. See United States v. Nolen,
472 F.3d 362, 382 (5th Cir. 2006) (“Nolen . . . contends that restitution is not
authorized by that statute. Nolen did not raise this objection at sentencing,
but because he is claiming that this element of his sentence is illegal, we review
it de novo.”); United States v. Chem. & Metal Indus., 677 F.3d 750, 752 (5th
Cir. 2012) (applying de novo review to a claim that the restitution award of
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                                  No. 14-30324
$2,000,000 “exceeded the statutory maximum” despite the defendant having
not raised that objection before the district court); see also United States v.
Chaney, 964 F.2d 437, 451 (5th Cir. 1992) (“[W]hen the legality of a restitution
award is questioned, we review that award de novo.”).
      Conversely, this court has also applied plain error review to an
unpreserved claim that a restitution award was not authorized by the relevant
statute. See United States v. Maturin, 488 F.3d 657, 660 (5th Cir. 2007) (“This
court ordinarily reviews the legality of a restitution order de novo. Because
Maturin failed to object to either the amount of restitution recommended in
the pre-sentence investigation report or the district court’s restitution
order . . . we review Maturin’s claim only for plain error.”) (internal citations
omitted). Nevertheless, because Nolen is the earliest case to address this issue
that we have been able to locate, it is controlling. See Shami v. Comm’r, 741
F.3d 560, 569 (5th Cir. 2014) (“When panel opinions appear to conflict, we are
bound to follow the earlier opinion.”) (internal quotation marks omitted);
Jacobs v. Nat’l Drug Intelligence Center, 548 F.3d 375, 378 (5th Cir. 2008) (“It
is a well-settled Fifth Circuit rule of orderliness that one panel of our court
may not overturn another panel’s decision, absent an intervening change in
the law . . . .”). Therefore, despite Bevon’s failure to challenge the legality of
the HSBC restitution award before the district court, we will apply de novo
review. See Nolen, 472 F.3d at 382.
                          III.      DISCUSSION
      Bevon challenges the district court’s order awarding $2,300 in restitution
to HSBC.    She argues that the award is illegal because Bevon’s conduct
relating to HSBC did not occur in the course of the schemes of conviction––a
statutory prerequisite to restitution. See 18 U.S.C. § 3663A(a)(2); 18 U.S.C. §
3663(a)(2). However, before we reach the merits of Bevon’s challenge, we must
first address the Government’s argument that because Bevon agreed to the
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restitution amounts at the sentencing hearing, she has waived her right to
challenge the HSBC restitution award. After a review of the record, we hold
that Bevon has not waived her right to challenge this portion of the district
court’s restitution order. “Waiver and forfeiture are two different means by
which a defendant may react to an error by the government or the district court
in the proceedings in a case.” United States v. Arviso-Mata, 442 F.3d 382, 384
(5th Cir. 2006) (internal quotation marks omitted). “Forfeiture is the failure
to make the timely assertion of a right; waiver is the intentional
relinquishment of a known right.” Id. In order for a waiver to occur, the
defendant must make “an affirmative choice . . . to forego any remedy available
to him.” United States v. Andino-Ortega, 608 F.3d 305, 308 (5th Cir. 2010)
(internal quotation marks omitted).      The mere lack of an objection or an
uninformed statement of “no objection” does not constitute waiver. See id. at
308–09. “[W]aived errors are entirely unreviewable.” Arviso-Mata, 442 F.3d
at 384.
      Bevon did not intentionally relinquish her right to challenge the
lawfulness of the HSBC restitution award during the sentencing hearing. The
Government points to a statement by Bevon’s counsel that “the memo that we
received yesterday, I think, was accurate and I discussed that with Ms. Bevon.
I believe she agrees to that.” After viewing this statement in context, it is clear
that Bevon’s counsel was indicating that Bevon’s objection to the PSR
regarding whether she owed $113,000 to Rebowe was rendered moot by the
probation officer’s March 18, 2014 letter. This statement does not indicate that
Bevon intentionally relinquished her known right to challenge the legality of
the HSBC restitution award.
      The Government also highlights the portion of the sentencing hearing in
which the district court stated, after explaining that Bevon’s restitution would
include (among other items) $2,300 to HSBC Bank, that “I’m going to order
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                                       No. 14-30324
that the defendant pay that restitution unless counsel . . . tells me that either
those numbers are incorrect, [or] the payees are incorrect.” Although Bevon’s
counsel stated that he believed the amounts and payees were correct, this does
not represent an intentional relinquishment of Bevon’s right to challenge the
legality of the restitution order. The Government cites United States v. Conn,
657 F.3d 280 (5th Cir. 2011), for the proposition that Bevon’s repeated
assurances to the district court that the restitution amount to HSBC was
correct waived her right to challenge the restitution order on appeal. However,
in Conn this court confronted a situation where the defendant had abandoned
a previously made objection. See Conn, 657 F.3d at 286. That is not the
situation here.      While Bevon agreed that the restitution was correct at
sentencing, the challenge to the HSBC restitution that she raises on appeal
was not raised by the parties or the district court, nor is there any evidence
that it was even contemplated.            Bevon’s counsel’s failure to object to the
restitution award to HSBC on the basis that it is not authorized by statute, as
Bevon does here, does not constitute waiver. See Andino-Ortega, 608 F.3d at
308 (“Counsel’s failure to object below because he did not recognize the
argument now being made on appeal is not a waiver.”). Nothing in the record
indicates that Bevon knew of the challenge that she raises on appeal and made
“an intentional and knowing relinquishment” of that challenge.                            Id.
Accordingly, Bevon did not waive the argument that she makes here. See id. 2
       We next turn to Bevon’s substantive argument that the HSBC
restitution award was illegal because the purchases made on the HSBC credit



       2 Bevon’s plea agreement contained an appeal waiver that states that she “[w]aives
and gives up any right to appeal . . . any restitution imposed by any judge under any
applicable restitution statute.” While the appeal waiver “specifically d[id] not waive . . . a
direct appeal of any sentence imposed in excess of the statutory maximum,” the Government
has explicitly chosen to “not address” whether the appeal waiver bars Bevon’s appeal here.
Accordingly, we do not address the appeal waiver.
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                                 No. 14-30324
card were not made in the course of the schemes described in the bill of
information. After a review of the record, we hold that the district court erred
when it awarded restitution to HSBC “based on relevant conduct that went
beyond [Bevon’s] offense[s] of conviction.” United States v. Benns, 740 F.3d
370, 377 (5th Cir. 2014).
      The MVRA provides that the district court shall award restitution to the
victims of certain offenses, including those for which Bevon was convicted. 18
U.S.C. § 3663A(a)(1), (c)(1)(A)(ii).    “The term ‘victim’ means a person
. . . harmed as a result of the commission of an offense for which restitution
may be ordered.” 18 U.S.C. § 3663A(a)(2). “[I]n the case of an offense that
involves as an element a scheme, conspiracy, or pattern of criminal activity,” a
victim includes “any person directly harmed by the defendant’s criminal
conduct in the course of the scheme, conspiracy, or pattern.” Id. In addition,
the district court “shall also order, if agreed to by the parties in a plea
agreement, restitution to persons other than the victim of the offense.” 18
U.S.C. § 3663A(a)(3). The three offenses for which Bevon was convicted each
has a fraudulent scheme as an element of the offense. See United States v.
Woodard, 493 F. App’x 483, 485 (5th Cir. 2012) (unpublished) (“A scheme or
artifice to defraud is an element of bank fraud”); United States v. Arledge, 553
F.3d 881, 890, 892 (5th Cir. 2008) (mail and wire fraud).
      “A defendant sentenced under the [MVRA] is only responsible for paying
restitution for the conduct underlying the offense for which he was convicted.”
United States v. Inman, 411 F.3d 591, 595 (5th Cir. 2005). “The general rule
is that a district court can award restitution to victims of the offense
. . . .” Benns, 740 F.3d at 377 (internal quotation marks omitted). Accordingly,
this court, relying on the Supreme Court’s decision in Hughey v. United States,
495 U.S. 411 (1990), has held that a “restitution award can encompass only
those losses that resulted directly from the offense for which the defendant was
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                                     No. 14-30324
convicted.”    United States v. Espinoza, 677 F.3d 730, 732 (5th Cir. 2012)
(internal quotation marks omitted). However, where “‘a fraudulent scheme is
an element of the conviction, the court may award restitution for actions
pursuant to that scheme.’” United States v. Read, 710 F.3d 219, 231 (5th Cir.
2012) (quoting United States v. Cothran, 302 F.3d 279, 289 (5th Cir. 2002)). In
such a case, “restitution for the underlying scheme to defraud is limited to the
specific temporal scope of the indictment.”              Inman, 411 F.3d at 595.
Furthermore, “the court may also order, if agreed to by the parties in a plea
agreement, restitution to persons other than the victim of the offense.” Benns,
740 F.3d at 377 (citing 18 U.S.C. § 3663(a)(1)(A)).
       The schemes underlying Bevon’s offenses of conviction do not include
Bevon’s conduct involving the fraudulent charges on the HSBC credit card.
Bevon’s mail fraud conviction was premised on a scheme to defraud that
involved an application for a different credit card. The scheme underlying
Bevon’s wire fraud conviction involved sending a fraudulent wire transfer used
to pay a prior restitution obligation. Finally, the scheme underlying Bevon’s
bank fraud conviction involved the fraudulent repurchase of her foreclosed
home. Furthermore, the temporal scope of the mail fraud and bank fraud does
not include the fraudulent use of the HSBC credit card, which began in August
2008. 3 See Inman, 411 F.3d at 595 (holding that it was plain error to order
restitution for “transactions that were not alleged in the indictment and
occurred over two years before the specified temporal scope of the indictment”).
Moreover, the wire fraud count related to one discrete transaction that was
unrelated to the HSBC credit card. Accordingly, because the conduct relating
to HSBC was not a part of the schemes underlying Bevon’s offenses of



      3 The conduct underlying the mail fraud conviction took place in July 2008. The bank
fraud scheme began as early as July 27, 2005 and continued through about July 11, 2008.
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conviction, it was improper for the district court to order restitution for HSBC.
See Espinoza, 677 F.3d at 732.
      Assuming arguendo that the district court has authority to grant
restitution to victims other than victims of the offenses of conviction, the
parties must, at a minimum, agree to such a restitution award in a plea
agreement. See 18 U.S.C. § 3663A(a)(3) (the district court “shall also order, if
agreed to by the parties in a plea agreement, restitution to persons other than
the victim of the offense.”); see also Benns, 740 F.3d at 377 (“[T]he court may
also order, if agreed to by the parties in a plea agreement, restitution to persons
other than the victim of the offense.” (emphasis added) (internal quotation
marks omitted)); United States v. Bagley, 578 F. App’x 343, 344 (5th Cir. 2014)
(unpublished) (holding that the defendant’s written and oral acknowledgement
at the plea colloquy that a restitution award could include victims of conduct
beyond the offense of conviction was clear and obvious error in the absence of
such an acknowledgement within a plea agreement). HSBC was not a victim
of Bevon’s offenses of conviction and the parties’ plea agreement does not
indicate that the parties agreed to include HSBC in the restitution award.
Therefore, the HSBC restitution award was illegal. Accordingly, the district
court erred when it ordered Bevon to pay restitution to HSBC.
                          IV.       CONCLUSION
      For the foregoing reasons, we VACATE the portion of the judgment
ordering restitution to HSBC and AFFIRM the remainder of the district court’s
judgment.




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