     Case: 13-20554      Document: 00512897098         Page: 1    Date Filed: 01/12/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-20554                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                January 12, 2015
                                                                           Lyle W. Cayce
                                                 Plaintiff - Appellee           Clerk
v.

JIM DIAL,

                                                 Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            U.S.D.C. No. 4:10-CR-56-3


Before PRADO, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jim Dial pleaded guilty to conspiracy to commit wire fraud pursuant to
a written plea agreement in which he waived all appeals except, as relevant
here, an appeal of a sentence entered in excess of the statutory maximum. Dial
appeals the restitution order entered by the district court, and the government
counters by asserting the appeal waiver. We conclude (and Dial does not
seriously dispute) that the record shows that the appeal waiver was knowing
and voluntary. United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-20554    Document: 00512897098     Page: 2   Date Filed: 01/12/2015



                                 No. 13-20554
Dial does not contend that the appeal waiver is inapplicable to restitution
orders in general but does contend that this particular restitution order was
“in excess of the statutory maximum” because it encompasses amounts that
are not within the losses permitted by the restitution statute.
      We conclude that the record is inadequate to address this contention
because we do not have the materials apparently presented to the district court
and upon which the government contends that the district court relied. We
conclude that, in the interests of justice, we should remand the case for a
hearing on the restitution order at which the evidence upon which the district
court relied is made part of the record. At this hearing, the parties should have
an opportunity to present their arguments regarding the restitution order to
the district court.   The burden is on the government to establish the
appropriate amount of restitution, and the district court should reassess the
question based upon the evidence that the government has entered into the
record. United States v. Sharma, 703 F.3d 318, 325 (5th Cir. 2012) (“[T]he
[Mandatory Victim Restitution Act] puts the burden on the government to
demonstrate the amount of a victim’s loss . . . .”). Accordingly, we VACATE the
restitution order and REMAND for proceedings consistent herewith.




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