     Case: 15-30738       Document: 00513488296         Page: 1     Date Filed: 05/02/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                     No. 15-30738                                  FILED
                                   Summary Calendar                             May 2, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CHARLES A. LANPHIER,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:14-CR-127


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Charles A. Lanphier challenges the restitution order of approximately
$5.98 million, imposed following his guilty plea to failure to pay employment
taxes, in violation of 26 U.S.C. § 7202. For the first time on appeal, he asserts
the court exceeded its statutory authority to impose restitution under 18
U.S.C. § 3663(a), claiming that, pursuant to the plea-agreement’s plain
language, the amount exceeds that agreed upon by the parties.                                  (The


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-30738

Government does not claim Lanphier’s limited waiver of his right to appeal
bars review of the issue presented.)
      Under that agreement, the parties stated the court “will order full
restitution from [Lanphier’s] scheme, as outlined in paragraph 11 above, in an
amount to be determined by the Court”; and “shall not be limited to the counts
of conviction in determining and ordering full restitution”. (Emphasis added.)
Paragraph 11 described Lanphier’s failure to pay employment taxes between
2008 and 2011 (totaling more than $2.5 million), but not any failures to pay
employment taxes before 2008; but, it also described other failures regarding
his personal federal income-tax returns starting in 2002. Moreover, the parties
stipulated “the loss caused by [his] scheme was more than $2.5 million but not
more than $7 million”, and stated Lanphier understood “the Court may . . .
order restitution in accordance with the law”, which he confirmed at
arraignment and at sentencing.
      The parties agree the court was authorized, as stated in 18 U.S.C.
§ 3663(a)(3), to “order restitution . . . to the extent agreed to by the parties in
a plea agreement”. See United States v. Simmons, 420 F. App’x 414, 421 (5th
Cir. 2011).   Therefore, although Lanphier frames his contention as the
restitution’s exceeding the court’s statutory authority because it includes tax
years preceding 2008, his claim does not require interpreting § 3663(a)(3).
Instead, only the quantum of restitution intended under the plea agreement
need be addressed.
      The Pre-Sentence Investigation Report (PSR) calculated unpaid
employment taxes in each year between 2005 and 2011. The court relied on
the PSR in setting the amount for restitution and specifically included
amounts of restitution for each of those years. Because Lanphier did not object
either to the calculations provided in the PSR or the court’s reliance on the



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                                  No. 15-30738

PSR in setting the amount of restitution, review is only for plain error. E.g.,
United States v. De Leon, 728 F.3d 500, 507 (5th Cir. 2013); United States v.
Rosbottom, 763 F.3d 408, 419 (5th Cir. 2014), cert. denied, 135 S. Ct. 985 (2015),
and cert. denied sub nom. Kisla v. United States, 135 S. Ct. 989 (2015). Under
that standard, Lanphier must show a forfeited plain (clear or obvious) error
that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he does so, we have the discretion to correct the reversible plain
error, but should do so only if it “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings”. Id.
      The district court’s interpretation of the plea agreement is subject to
reasonable dispute; therefore, it is not clearly erroneous. See Puckett, 556 U.S.
at 135. In the alternative, Lanphier’s substantial rights were not affected: the
amount of restitution represents actual loss caused by his scheme; the court
confirmed Lanphier understood he could be required to pay “full restitution”;
and, although the court could have imposed additional financial penalties, it
refrained from doing so. See Puckett, 556 U.S. at 135; United States v. Miller,
406 F.3d 323, 330–31 (5th Cir. 2005).
      AFFIRMED.




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