     Case: 10-50703     Document: 00511518421          Page: 1    Date Filed: 06/23/2011




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

                                                  FILED
                                                                            June 23, 2011
                                     No. 10-50703
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

JOE ALBERT SMITH,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 7:10-CR-59-1


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Joe Albert Smith pled guilty pursuant to a written plea agreement to
evasion of payroll taxes in violation of 26 U.S.C. § 7201. The district court
imposed a sentence of 60 months in prison to be followed by three years of
supervised release, and also ordered Smith to make restitution in the amount
of $27,784,112.35.
        On appeal, Smith argues that his conviction and sentence should be
vacated because the district court failed to inform him that it was rejecting the
plea agreement and did not provide the appropriate Federal Rule of Criminal
Procedure 11 colloquy when it imposed a restitution amount greater than 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50703

amount specified in the plea agreement. He further argues (1) that he is entitled
to sentencing before a different judge because the Government breached the plea
agreement and (2) that the district court erred in imposing restitution as part
of his sentence and in ordering payment of a sum based, in part, on conduct for
which he was not convicted.
      Smith did not object on these bases in the district court. Accordingly,
review is for plain error only. See United States v. Self, 596 F.3d 245, 248 (5th
Cir. 2010). Because an illegal sentence always constitutes plain error, we review
de novo Smith’s assertion that the district court erred in ordering that he pay
restitution as a component of his sentence. See United States v. Nolen, 472 F.3d
362, 382 & n.52 (5th Cir. 2006). Although Smith’s plea agreement contained a
provision wherein Smith agreed to waive his right to appeal his conviction or
sentence, the Government has evidenced its intention not to enforce the
appellate waiver as it pertains to Smith’s sentence and has waived the issue
regarding Smith’s conviction. See United States v. Rhodes, 253 F.3d 800, 804
(5th Cir. 2001).
      Because Smith’s plea agreement did not contain a sentencing agreement
of the type binding on the district court, Smith cannot demonstrate that the
district court’s rejection of the stated restitution amount triggered its obligation
to give the Rule 11 admonishments and offer him an opportunity to withdraw
his guilty plea. See id. at 804; Fed. R. Crim. P. 11(c)(1)(C). Accordingly, the
district court did not commit plain error, and the provision of the plea agreement
waiving Smith’s right to appeal his conviction is still valid. See Self, 596 F.3d
at 248; Rhodes, 253 F.3d at 804-05.
      The plea agreement stated that Smith agreed to pay $5,057,119 in
restitution; however, the Government made no promises regarding Smith’s final
sentence and did not promise to advocate for any specific sentence. Because the
Government did not breach any terms of the plea agreement, Smith is not



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                                   No. 10-50703

entitled to resentencing. See United States v. Brown, 328 F.3d. 787, 790 (5th
Cir. 2003); United States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993).
       In federal tax evasion cases, the district court is not permitted to order
restitution as part of the sentence under 18 U.S.C. § 3663. Nolen, 472 F.3d at
382. However, restitution may be imposed as a condition of supervised release
under 18 U.S.C. § 3583, “but only if ‘the specified sum of taxes . . . has [] been
acknowledged, conclusively established in the criminal proceeding, or finally
determined in civil proceedings.’” Id. (citations omitted). In addition, restitution
may be imposed as a condition of supervised release, even absent a final
determination or adjudication of the exact amount owed, if the losses are limited
solely to the underlying offense of conviction. United States v. Nolen, 523 F.3d
331, 332 (5th Cir. 2008).
       As the Government concedes, it was error for the district court to impose
restitution as a separate component of Smith’s sentence. See Nolen, 472 F.3d at
382.   Furthermore, even if the district court had imposed restitution as a
condition of Smith’s supervised release, it plainly erred by relying on relevant
conduct to calculate the amount of restitution. See United States v. Inman, 411
F.3d 591, 595 (5th Cir. 2005). Accordingly, Smith’s conviction and sentence are
AFFIRMED. Smith’s restitution order is REMANDED for the limited purposes
of allowing the district court to determine whether it wishes to impose
restitution as a condition of supervised release, and if so, how much. See id. at
595-96; Nolen, 472 F.3d at 382.
       If the district court decides not to impose restitution, the restitution order
should be vacated ipso facto. See Nolen, 472 F.3d at 383. Due to the limited
nature of this remand, we retain appellate cognizance over this case, and if the
district court decides to reimpose restitution, the case shall be returned to this
panel for further review of the new restitution order. See id.
    CONVICTION AND SENTENCE AFFIRMED; RESTITUTION ORDER
REMANDED.


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