     Case: 16-50029      Document: 00513928924         Page: 1    Date Filed: 03/28/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                    No. 16-50029                               FILED
                                  Summary Calendar                       March 28, 2017
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ADRIAN EDWARDO PENA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:13-CR-324-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Adrian Edwardo Pena pleaded guilty, pursuant to a plea agreement
containing an appeal waiver, to having made a false, fictitious, and fraudulent
claim to the Government, and he was sentenced to 26 months of imprisonment
(time served) and three years of supervised release. He also was ordered to
pay $804,765.85 in restitution to the United States Property and Fiscal Office
for the State of Arizona-Phoenix (USPFO-AZ), which consisted of $230,987.30


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-50029     Document: 00513928924     Page: 2   Date Filed: 03/28/2017


                                  No. 16-50029

in actual losses due to Pena’s overstatement of insurance and bonding costs in
a December 2009 payment application, and $573,778.55 in actual losses
resulting from the June 2010 disbursement of an erroneous bank deposit.
      Pena now appeals the restitution order.         He first argues that the
Mandatory Victim Restitution Act did not authorize the award of restitution
based on unadjudicated conduct (the June 2010 disbursement) and further
that, to the extent the plea agreement exception under the Victim and Witness
Protection Act applies, the district court failed to consider that Act’s mandatory
factors and thus abused its discretion in awarding restitution for the
unadjudicated conduct. Pena also challenges both portions of the restitution
order, arguing that the award exceeded the actual loss to the USPFO-AZ
resulting from Pena’s proven conduct.
      The Government argues that these arguments are barred by Pena’s valid
appeal waiver. Pena presents no argument that the appeal waiver does not
apply to a restitution order in his case, and the record as a whole reflects that
his guilty plea and appeal waiver were knowing and voluntary and that the
waiver applies to the restitution order. See United States v. Keele, 755 F.3d
752, 755-56 (5th Cir. 2014); United States v. Bond, 414 F.3d 542, 544 (5th Cir.
2005). Pena instead argues that the appeal waiver does not bar his challenges
to the restitution order because one of two exceptions apply, namely, the
restitution award is inconsistent with the parties’ agreement and/or the award
exceeds the statutory maximum.
      Pena is mistaken. Affording the language of the plea agreement its plain
meaning, the waiver applies to the circumstances at issue in this case, and the
exception to the waiver for an “inconsistent” sentence does not apply. See
Bond, 414 F.3d at 545; United States v. Cortez, 413 F.3d 502, 503 (5th Cir.
2005). The plea agreement provides, inter alia, that the amount of restitution



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                                 No. 16-50029

would “not be limited to the amount of loss attributable to the precise conduct
set forth in Count Two but will encompass the conduct charged in the
indictment.”    See also 18 U.S.C. § 3663(a)(3).   Accordingly, Pena and the
Government expressly agreed that the restitution award could include any
losses caused by the conduct charged in Count Three (theft of public money
beginning on December 4, 2009, and continuing until June 21, 2010) and Count
Four (conspiracy to launder monetary instruments beginning on June 18,
2010, and continuing until June 21, 2010).         Additionally, Pena 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. Bond, 414 F.3d at 546. Finally, even if, as Pena
urges, we were to apply an exception to his appeal waiver to allow a challenge
to a sentence exceeding the statutory maximum, his arguments do not fall
within such an exception.
      Because the plain language of the waiver provision applies to Pena’s
appellate challenges, and because the record reflects that Pena understood the
rights that he was waiving, we will enforce the waiver and DISMISS the
appeal. See Bond, 414 F.3d at 544, 546. Pena’s motion requesting that this
court stay further proceedings on the instant appeal until his appeal in
No. 16-51351 is resolved is DENIED.




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