                     REVISED SEPTEMBER 17, 2008

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

                                                                               FILED
                                       No. 07-20930                        September 8, 2008

                                                                         Charles R. Fulbruge III
                                                                                 Clerk
UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

SUNNY ALFRED IMEH

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:05-cr-00050


Before KING, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
       Sunny Alfred Imeh (“Imeh”) appeals the voluntariness of his guilty plea.
Imeh argues that the district court affected his substantial rights by failing to
notify him of its authority to order restitution, and by imposing a restitution
order in excess of the maximum amount that the court warned him could be
imposed as a fine. Imeh asks this court to reduce the amount of restitution


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-20930

ordered by the district court to the total amount of fines warned of in the district
court’s admonition. Imeh failed to establish that he would not have pleaded
guilty but for the error, or that this case presents facts that seriously affect the
fairness, integrity, or public reputation of judicial proceedings. Accordingly, we
affirm.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      In May 2005, Imeh was charged in a thirty-three count superseding
indictment with, inter alia, conspiracy to commit wire fraud, mail fraud, health
care fraud, and aiding and abetting, all related to his durable medical equipment
company. In June 2005, after signing a plea agreement, Imeh pleaded guilty to
two counts: conspiracy, in violation of 18 U.S.C. § 371, and health care fraud, in
violation of 18 U.S.C. § 1347. In the written plea bargain, Imeh agreed to
cooperate with the ongoing government investigation. He also agreed to pay
restitution to the government, a fine imposed by the court, and a $200 special
assessment. In the agreement, Imeh waived his right to appeal his sentence
unless the sentence imposed was above the statutory maximum.                   The
government dismissed the remaining charges.
      Before Imeh entered his plea, the district court held a hearing, pursuant
to Federal Rule of Criminal Procedure 11, during which the court admonished
Imeh that he could be responsible for a fine of up to $250,000 for each of the two
counts in his guilty plea. The court did not warn Imeh of the possibility of
restitution, although at the plea colloquy the government read aloud the factual
basis for the pleas—including the fact that Imeh had received approximately
$1.6 million in his scheme. Imeh acknowledged that the factual basis was
accurate. The district court sentenced Imeh to sixty months’ imprisonment for
the conspiracy count and sixty-three months’ imprisonment for the health care
fraud count, to be served concurrently. The court also imposed restitution in the
amount of $668,730.05. The court did not impose a fine.

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                                 II. JURISDICTION
       Imeh did not file a timely notice of appeal, but he later filed a pro se
motion to file an untimely notice of appeal. The district court denied the motion
based on Imeh’s waiver of the right to appeal in his plea agreement. In an
appeal of that ruling, this court held that the district court erred in denying
Imeh’s motion because the plea agreement waived only Imeh’s right to appeal
his sentence, not his right to appeal his conviction. See United States v. Imeh,
255 F. App’x 833, 834-35 (5th Cir. 2007) (per curiam) (unpublished) (citing
United States v. Palmer, 456 F.3d 484, 487-89 (5th Cir. 2006)). Because Imeh’s
Rule 11 argument implicated the voluntariness of his guilty plea, this court
considered this appeal to be a challenge to Imeh’s conviction. Imeh, 255 F. App’x
at 835. In characterizing Imeh’s appeal as an appeal of his conviction, this court
relied on United States v. Glinsey, 209 F.3d 386, 394 (5th Cir. 2000). Imeh, 255
F. App’x at 835.        Glinsey characterized a Rule 11 error as affecting the
voluntariness of a guilty plea, and it provided a reduced restitution award as a
remedy. 209 F.3d at 394, 396.1 On remand, the district court granted Imeh an
out-of-time appeal.
                           III. STANDARD OF REVIEW
       Because Imeh’s trial counsel did not object to the restitution order at the
time of the district court’s Rule 11 admonishment, this court reviews for plain
error. United States v. Vonn, 535 U.S. 55, 59 (2002). To constitute plain error,
Imeh must show that “(1) there was an error; (2) the error was clear and obvious;
and (3) the error affected the defendant’s substantial rights.” United States v.
Villegas, 404 F.3d 355, 358 (5th Cir. 2005). To justify reversal for a district


       1
         The defendant in Glinsey sought to withdraw his guilty plea, but the court fashioned
a remedy that adjusted his sentence, rather than overturning his conviction. 209 F.3d at 392,
395 (“We may reduce the order of restitution to $1 million, an amount that does not infringe
his substantial rights. Glinsey is not prejudiced so long as his liability does not exceed the
maximum amount that the court informed him could be imposed as a fine.”).

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court’s error in a Rule 11 admonishment of a defendant, the defendant “must
show a reasonable probability that, but for the error, he would not have entered
the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). In
addition, this court may correct a plain error only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” United States v.
Olano, 507 U.S. 725, 732 (1993) (internal quotation marks omitted).
                               IV. DISCUSSION
      Federal Rule of Criminal Procedure 11(b)(1) requires a district judge to
“inform the defendant of, and determine that the defendant understands” certain
rights and consequences of a guilty plea before accepting the plea. One of those
admonishments is “the court’s authority to order restitution.” FED. R. CRIM. P.
11(b)(1)(K). The district court in this case did not advise Imeh of its authority
to order restitution. The court only told Imeh that he could be fined $250,000 for
each of the two counts to which he pleaded guilty. However, Imeh agreed to pay
any restitution award in his written plea agreement. The district court did not
ask whether Imeh had read and understood the plea agreement.
      In this appeal, Imeh argues that the district court’s failure to warn him of
the possibility of restitution was plain error and contends that the proper
remedy is to reduce the $668,730.05 restitution order to the total amount of fines
warned of in the court’s admonition, $500,000. Imeh relies primarily on this
court’s decision in Glinsey. 209 F.3d at 395. In Glinsey, the defendant’s plea
agreement did not mention restitution and the district court did not warn the
defendant of the possibility of restitution. Id. at 394. The district court informed
Glinsey only that he could face a fine of up to $1 million. Id. At sentencing, the
district court imposed restitution in the amount of $1,266,317.06; no fine was
imposed. Id. at 392.
      At the time Glinsey was decided, this court applied a harmless error
analysis to Rule 11 errors, asking: “(1) Did the sentencing court in fact vary from

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                                  No. 07-20930

the procedures required by Rule 11, and (2) if so, did such variance affect
substantial rights of the defendant?” United States v. Johnson, 1 F.3d 296, 298
(5th Cir. 1993) (en banc). Under that analysis, a defendant’s substantial rights
were violated if “the defendant’s knowledge and comprehension of the full and
correct information would have been likely to affect his willingness to plead
guilty.” Id. at 302.
      Noting the Johnson harmless error standard, the Glinsey court framed the
issue before it: “the question is whether Glinsey’s knowing about the roughly
$266,000 difference (between the amount of the possible fine he was informed
of and the restitution actually ordered) would have affected his willingness to
plead guilty.” Glinsey, 209 F.3d at 395. However, Glinsey never answered that
question. Id. (“Even assuming that the roughly $266,000 difference might have
affected his decision to plead guilty, the judgment need not be vacated.”).
Instead, the court merely reduced the amount of restitution to $1 million, the
amount the district court warned Glinsey he might have to pay in fines. Id. The
court reasoned that a defendant “is not prejudiced so long as his liability does
not exceed the maximum amount that the court informed him could be imposed
as a fine.” Id. “‘Whether the amount to be paid is classed as restitution or a fine
ordinarily makes little difference in its bite, and warning of one but not the other
does not require collateral relief.’” Id. (quoting United States v. Stumpf, 900 F.2d
842, 845 (5th Cir. 1990)). Thus, Glinsey established the rule that a potentially
prejudicial Rule 11 error can be remedied by simply reducing the amount owed
in restitution—instead of remanding to give the defendant an opportunity to
revise his plea.
      Because the court reduced Glinsey’s financial obligation as a remedy, we
can infer that the court must have believed that if a defendant’s liability exceeds
the maximum amount the court informed him could be imposed, that may, at
least in some circumstances, constitute prejudicial error. Cf. United States v.

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                                       No. 07-20930

Maharaj, 176 F. App’x 536, 539 (5th Cir. 2006) (unpublished) (“Glinsey merely
stands for the proposition that a judgment equal to the amount announced at the
plea colloquy cannot, by definition, affect a defendant’s substantial rights,
because the defendant received fair notice of that amount under [R]ule 11. It
does not follow that a judgment above the notified amount necessarily affects
substantial rights.” (citation omitted)).
       Imeh urges this court to apply Glinsey here; however, the remedy in
Glinsey is not appropriate under the circumstances. First, Glinsey merely notes
that a restitution award lower than the total amount warned of by the district
court does not affect substantial rights; that does not require that all awards
exceeding the amount warned of by the district court must necessarily affect
substantial rights. See Maharaj, 176 F. App’x at 538. Second, the defendant in
Glinsey was not warned in his plea agreement of the possibility of
restitution—Imeh signed a plea agreement that recognized the possibility of
restitution.    Third, a different standard applies: Glinsey’s harmless error
approach asked only whether a proper admonishment would have been likely to
affect his willingness to plead guilty. In contrast, in the plain error context,
Imeh must show a reasonable probability that, but for the error, he would not
have entered the plea.2


       2
           The government argues that Glinsey does not apply in this case because the
restitution in Glinsey was ordered pursuant to 18 U.S.C. § 3663, which authorizes
discretionary restitution. Here, the restitution was ordered pursuant to the Mandatory
Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. However, the government’s argument
misses the mark. First, the MVRA does not alter the Fifth Circuit’s review of Rule 11 errors.
See United States v. Lam, 233 F.3d 575 (5th Cir. 2000) (per curiam) (unpublished table
decision) (applying Glinsey even when the restitution was ordered pursuant to the MVRA).
Second, this court has noted that the MVRA makes a district court’s Rule 11 admonishment
more important than when restitution awards are discretionary: “it is extremely critical that
the sentencing judge give as full a disclosure as possible at the time of the plea colloquy
regarding the court’s authority to order mandatory restitution and the probable quantum
thereof.” United States v. Powell, 354 F.3d 362, 369-70 (5th Cir. 2003). Therefore, the Glinsey
court’s failure to impose mandatory restitution does not distinguish its holding.


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                                  No. 07-20930

      The critical factor in our decision not to apply a Glinsey-type remedy is
that we review the voluntariness of guilty pleas for plain error when the
defendant did not make a contemporaneous objection. In Vonn, 535 U.S. at 59,
the Supreme Court held that the plain error standard applies in reviewing a
Rule 11 error where the defendant failed to object in the trial court. Plain error
review differs from harmless error review in two important ways. First, in
harmless error review, the government carries the burden to show that a trial
error did not affect a defendant’s substantial rights. Id. at 58. In plain error
review, the defendant carries the burden of showing that the error affected his
rights. Id. Second, in plain error review, even if a defendant makes such a
showing, he “has the further burden to persuade the court that the error
seriously affect[ed] the fairness, integrity or public reputation of judicial
proceedings.” Id. at 63 (internal quotation marks omitted).
      The only case in this circuit applying plain error review to a Rule 11 error
of this type is Maharaj. 176 F. App’x at 538. In that case, the district court
warned the defendant of the possibility of a fine up to $250,000 but did not warn
him of the court’s authority to order restitution. Id. at 537. The defendant’s plea
agreement stated that any fine or restitution would be due immediately. Id.
Maharaj represented to the district court that he had read and understood the
plea agreement. Id. at 538. At sentencing, the district court imposed MVRA-
required restitution of roughly $225,000, plus a $125,000 fine. Id. Although
Maharaj did not make a contemporaneous objection, he appealed the restitution
order, arguing that his total financial obligation should be reduced from
$350,000 to the amount the district court orally admonished him—about
$250,000. Id. Because Maharaj failed to raise an objection before the district
court, this court applied plain error review. Id.
      The Maharaj court concluded that, “[m]ost importantly in the context of
plain error review . . . we are not persuaded that [the defendant] would not have

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                                       No. 07-20930

pleaded guilty but for the error.” Id. at 539. That is, when the defendant fails
to object contemporaneously to the Rule 11 admonishments, we apply plain error
review. As defined in the Rule 11 plain error context, a defendant “must show
a reasonable probability that, but for the error, he would not have entered the
plea.” Dominguez Benitez, 542 U.S. at 83.3
       The district court’s failure to notify Imeh that it had the authority to order
restitution was clear and obvious error. FED. R. CRIM. P. 11(b)(1)(K); see Glinsey,
209 F.3d at 394; Maharaj, 176 F. App’x at 538. However, Imeh has failed to
show that the Rule 11 error in this case affected his substantial rights. Imeh
asserts that the difference between the restitution order and the district court’s
warning “makes it unlikely that Imeh would have pleaded guilty” but for the
district court’s failure to provide the proper admonishment. This bald assertion
alone is not enough to show a “reasonable probability” that the district court’s
error was a but for cause of Imeh’s decision to enter the plea. Furthermore,
Imeh offers no ground on which to conclude that his sentence “seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings.” See Olano,
507 U.S. at 732 (internal quotations marks omitted).
                                   V. CONCLUSION
       Imeh has failed to show that but for the district court’s error he would not
have pleaded guilty. In addition, he has not shown that the verdict in this case
affects the fairness, integrity, or public reputation of judicial proceedings.



       3
          Although the facts of Maharaj can be distinguished from this case on several grounds,
none persuade us that Imeh is entitled to relief. First, Maharaj was held jointly and severally
liable for the restitution order with his two co-defendants—not so in the instant case. Second,
the difference between the judgment amount and the amount warned of at the plea colloquy
was approximately $100,000 in Maharaj—that difference is $168,730.05 in the instant case.
Finally, the defendant in Maharaj represented to the district court that he had read and
understood the plea agreement—Imeh made no such representation before the trial court.
None of these factors, however, suggest that the plain error standard, applied in Maharaj,
should not apply here.

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Accordingly, we affirm the district court’s conviction and decline to adjust the
restitution order.
      AFFIRMED.




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