                                                                                   FILED
                                                                       United States Court of Appeals
                        UNITED STATES COURT OF APPEALS                         Tenth Circuit

                              FOR THE TENTH CIRCUIT                          November 1, 2017
                          _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 16-3274
                                                   (D.C. No. 2:14-CR-20057-JAR-1)
RICHARD BALLARD,                                               (D. Kan.)

      Defendant - Appellant.
                      _________________________________

                              ORDER AND JUDGMENT*
                          _________________________________

Before BRISCOE, EBEL, and MATHESON, Circuit Judges.
                   _________________________________

       Richard Ballard appeals an order requiring payment of restitution to victims of his

wire fraud offense. Exercising jurisdiction under § 1291, we hold that his plea agreement

contains an enforceable waiver of appellate rights. Accordingly, we dismiss this appeal.

                                   I. BACKGROUND

       Mr. Ballard pled guilty to committing wire fraud in violation of 18 U.S.C. § 1343

by diverting investor funds to his personal use. In his plea agreement, he waived his right

to appeal his sentence, including any order of restitution imposed by the court.1 The


       *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       1
           Paragraph 3 of the plea agreement stated:
district court sentenced him to 27 months in prison and ordered him to pay restitution of

$415,477.11 to 11 victims who had submitted victim impact statements.2 Despite his

appeal waiver, Mr. Ballard filed this appeal challenging his restitution order as excessive.

He argues the district court erred by including in the restitution calculation (1) losses

suffered by three individuals he claims were not victims of the offense, and (2) salary

payments to his son he claims were not losses.

                                    II. DISCUSSION

                                      A. Jurisdiction

       The Government argues we lack subject matter jurisdiction over this appeal

due to 18 U.S.C. § 3742(a), which provides that a defendant may appeal an otherwise


       3. Proposed (c)(1)(C) Sentence. The parties propose, as an appropriate
       disposition of the case: (a) 27 months in prison . . . ; (b) 5 years of
       supervised release; . . . (e) restitution as determined by the court.

ROA, Vol. 1 at 28 (emphasis added).

       Paragraph 11 of the plea agreement stated:

       11. Waiver of Appeal and Collateral Attack.              The defendant
       knowingly and voluntarily waives any right to appeal or collaterally
       attack any matter in connection with this prosecution, his conviction, or
       the components of the sentence to be imposed herein . . . . In other
       words, the defendant waives the right to appeal the sentence imposed in
       this case, except to the extent, if any, the Court imposes a sentence in
       excess of the sentence recommended by the parties under Rule
       11(c)(1)(C).

Id. at 32 (emphasis added).
       2
        Although more than 20 investors suffered losses due to Mr. Ballard’s fraud,
only those who submitted victim impact statements were awarded restitution.

                                              2
final sentence if the sentence: (1) “was imposed in violation of law,” (2) “was

imposed as a result of an incorrect application of the sentencing guidelines,” (3) is

greater than the term of imprisonment under the applicable guidelines range, or (4)

“was imposed for an offense for which there is no sentencing guideline and is plainly

unreasonable.” 18 U.S.C. § 3742(a). But we need not rely on § 3742(a) to establish

jurisdiction here. The district court’s entry of a sentence constitutes a final order,

thereby establishing subject matter jurisdiction under 28 U.S.C. § 1291. United

States v. Hahn, 359 F.3d 1315, 1320 (10th Cir. 2004) (en banc); see 28 U.S.C. § 1291

(providing that courts of appeals have subject matter jurisdiction over final orders of

district courts).

        The Government also suggests we lack jurisdiction due to 18 U.S.C. § 3742(c),

which limits when a defendant who entered a Rule 11(c)(1)(C) plea agreement that

included a “specific sentence” may appeal.3 But the plea agreement here only

included “restitution as determined by the court” rather than a specific amount of

restitution. ROA, Vol. 1 at 28. Section 3742(c) is thus inapplicable. In any event, as

explained above, we derive our jurisdiction from § 1291. See Hahn, 359 F.3d at

1320.

                                  B. Appellate Waiver

        The primary question is whether to enforce Mr. Ballard’s appeal waiver and

dismiss his challenge to the restitution order. In this section, we provide legal

        3
      Section 3742(c) refers to Rule 11(e)(1)(C). In 2002, Rule 11(e)(1)(C) was
renumbered as Rule 11(c)(1)(C), though no substantive changes were made.

                                            3
background on the Mandatory Victims Restitution Act (“MVRA”) and this court’s

Hahn framework for determining when to enforce appellate waivers. We then apply

Hahn and conclude that Mr. Ballard’s waiver bars this appeal.

1. Legal Background

      a. The Mandatory Victims Restitution Act

      Federal courts lack inherent authority to order restitution and may do so only when

authorized by statute, such as the MVRA. United States v. Gordon, 480 F.3d 1205, 1210

(10th Cir. 2007). The MVRA requires courts to order restitution if the offense of

conviction “involves as an element a scheme, conspiracy or pattern of criminal activity.”

18 U.S.C. § 3663A(a)(2). Wire fraud includes as an element a scheme to defraud.

United States v. Daniel, 749 F.3d 608, 613 (7th Cir. 2014); see also 18 U.S.C. § 1343.

      The maximum amount of restitution permitted under the MVRA is “the full

amount of each victim’s losses as determined by the court.” 18 U.S.C.

§ 3664(f)(1)(A); see also Gordon, 480 F.3d at 1211 (providing that the MVRA

authorizes restitution to cover victims’ “loss[es] resulting from the count to which

[the defendant] pled guilty”) (citing Hughey v. United States, 495 U.S. 411, 420

(1990)); United States v. James, 564 F.3d 1238, 1246 (10th Cir. 2009) (stating that

courts determine restitution based on victims’ “actual loss”). “Restitution must not

unjustly enrich crime victims or provide them a windfall.” United States v. Ferdman,

779 F.3d 1129, 1132 (10th Cir. 2015).

      In calculating loss under the MVRA, the court is not required to use absolute

precision. United States v. Gallant, 537 F.3d 1202, 1252 (10th Cir. 2008). “A

                                            4
sentencing court may resolve restitution uncertainties with a view towards achieving

fairness to the victim, so long as it still makes a reasonable determination of

appropriate restitution rooted in a calculation of actual loss.” Id. (quotations

omitted). Although the statute permits some imprecision, a restitution order that

exceeds the maximum amount—i.e., the victims’ actual loss—is unlawful under the

MVRA. See Gordon, 480 F.3d at 1210.

      b. Hahn’s three-part framework

      Under Hahn, we will enforce an appeal waiver if (1) “the disputed appeal falls

within the scope of the waiver of appellate rights,” (2) “the defendant knowingly and

voluntarily waived his appellate rights,” and (3) “enforcing the waiver would [not]

result in a miscarriage of justice.” 359 F.3d at 1325. One of the situations we

identified as a miscarriage of justice is “where the sentence exceeds the statutory

maximum.” Id. at 1327 (quotations omitted). Enforcing an unlawful restitution order

“constitute[s] a miscarriage of justice because [the order] is beyond the remedy

authorized by the statute.” Gordon, 480 F.3d at 1212.

2. Analysis

      Mr. Ballard does not dispute that he waived his appellate rights knowingly and

voluntarily; the only questions here relate to (a) the scope of the waiver and (b)

whether enforcement would result in a miscarriage of justice.

      a. Scope of the waiver

      Mr. Ballard’s challenge to the restitution award falls within the scope of his

appeal waiver. In paragraph 11 of the plea agreement, Mr. Ballard “waive[d] any

                                            5
right to appeal . . . the components of the sentence to be imposed herein . . . .” ROA,

Vol. 1 at 32. In paragraph 3, the components of the proposed sentence included

“restitution as determined by the court.” Id. at 28. The plea agreement also stated

that “the defendant waives the right to appeal the sentence imposed in this case,

except to the extent, if any, the Court imposes a sentence in excess of the sentence

recommended by the parties under Rule 11(c)(1)(C).” Id. at 32.4 But the parties did

not recommend a specific restitution order amount, so this exception does not apply.

Because restitution, “as determined by the [district] court,” was a component of the

sentence, Mr. Ballard’s appeal is within the scope of his waiver. Id. at 28.

2. Miscarriage of Justice

      Mr. Ballard contends that the restitution order exceeds the MVRA’s statutory

maximum because it requires payments to individuals who were not victims and includes

amounts of money that were not losses under the MVRA. The restitution order, he

concludes, is thus unlawful and unenforceable. We disagree.

      The district court’s restitution order does not exceed the victims’ actual loss and

thus does not exceed the MVRA’s statutory maximum. The court imposed a restitution

award of $415,477.11—the amount of investors’ money the FBI determined Mr. Ballard

embezzled for personal use. But the record supports that the victims’ actual loss—the

proper basis of a restitution calculation—is actually much higher. Mr. Ballard’s top two

investors invested a total of $500,000 into his companies, which “because of [Mr.


      4
        The plea agreement expressly preserved Mr. Ballard’s right to appeal two
issues: (1) ineffective assistance of counsel and (2) prosecutorial misconduct.
                                            6
Ballard’s] fraud . . . were basically worth nothing to the investors” in the end. ROA, Vol.

2 at 93. Even without taking into account the losses of the additional nine victims

receiving restitution, the losses attributable to these two investors alone provide ample

support for the restitution order. Nor does the restitution result in a windfall for the

victims, as the amount each was awarded is still significantly less than what the U.S.

Probation Office determined they were due—a fact Mr. Ballard does not contest.

       Mr. Ballard contends that losses attributed to three individuals should have been

subtracted from the award because they were not victims.5 Although these individuals

were never slated to receive restitution, their losses were included in the total amount of

restitution to be divided among the 11 victims who submitted victim impact statements.

Mr. Ballard has a point. If someone is not a victim deserving restitution under the

MVRA, then the restitution award—which must reflect the actual loss suffered by the

victims—should not include losses attributable to that person. But any such error here is

harmless because, as explained above, ample record evidence supports the restitution

award even without these contested amounts, and thus there is no need to remand. See

United States v. Seignious, 757 F.3d 155, 164 (4th Cir. 2014).

       The same point applies to Mr. Ballard’s argument that the restitution award

erroneously includes salary payments to his son, which he contends were legitimate

business expenses. Again, restitution is calculated based on the victims’ actual loss.


       5
        According to the FBI’s forensic report, the restitution award included losses
of $18,500, $6,600, and $8,000 attributable to three individuals—two of whom the
Government conceded were not victims.

                                              7
Even if the payments to his son were legitimate, the total amount of the investors’ losses

caused by his fraud far exceeded the actual restitution award of $415,477.11.

       Finally, Mr. Ballard argues that our decisions in Gordon6 and United States v.

Hudson, 483 F.3d 707 (10th Cir. 2007),7 permit him to appeal the legality of the

restitution order. To the extent he argues his appellate waiver does not preclude us from

engaging in the Hahn analysis above, he is correct. Under Hahn, we have jurisdiction

over this appeal and a framework for deciding whether an appellate waiver applies. 359

F.3d at 1320, 1325. We have determined that Mr. Ballard has failed to demonstrate that

any of the three Hahn factors preclude enforcement of the appellate waiver.

       To the extent Mr. Ballard contends Gordon and Hudson allow him to circumvent

our en banc decision in Hahn, we disagree. Taken together, these two cases support the

proposition that we cannot enforce an appeal waiver when the sentence includes an

       6
        In Gordon, we held that the defendant’s appellate waiver preserved her right to
appeal an unlawful restitution order. 480 F.3d at 1208-09. The restitution order in
question was unlawful because it included losses not associated with the sole count of
conviction and thus exceeded the MVRA. Id. at 1207. Applying Hahn, we declined to
enforce the appellate waiver because an appeal of an unlawful restitution order “[wa]s
beyond the scope of the waiver,” id. at 1210, and enforcing an unlawful restitution order
would “constitute a miscarriage of justice,” id. at 1212 (citing Hahn, 359 F.3d at 1327).
Mr. Ballard’s restitution order is not unlawful, so this case is inapt.
       7
         In Hudson, the defendant, who had pled guilty to selling counterfeit software,
appealed the amount of restitution, arguing the copyright holder had failed to demonstrate
any losses related to his offense. 483 F.3d at 709. Citing Hahn and Gordon, we held that
a defendant cannot “be deemed to have waived his right to appeal the legality of the
court’s restitution order” and proceeded to find the restitution order unlawful because
there was no support in the record that the defendant’s actions had deprived the copyright
holder of potential sales. Id. at 711. Enforcing an unlawful restitution order constitutes a
miscarriage of justice under Hahn, and we declined to do so. Id. Again, the restitution
order here is not unlawful.

                                             8
unlawful restitution order—essentially a reiteration of Hahn’s third prong, which

provides that a “sentence [that] exceeds the statutory maximum,” such as an unlawful

restitution order, would be a miscarriage of justice. Id. at 1327. Mr. Ballard’s restitution

order, however, was not unlawful, and thus these cases are inapt.

                                          ****

       In sum, Mr. Ballard signed a plea agreement waiving his right to appeal any

component of his sentence, including restitution. He appealed the restitution order,

challenging its legality. Applying Hahn’s framework, we conclude that Mr. Ballard

failed to demonstrate any of the three circumstances that would preclude application of

the appellate waiver. First, his appeal falls within the scope of the waiver. Second, he

does not contest that the waiver was knowing and voluntary. Third, the restitution order

is within the MVRA’s statutory maximum so enforcing the appellate waiver, regardless

of whether the district court committed any errors in calculating the award, would not

result in a miscarriage of justice.

       Accordingly, we hold Mr. Ballard’s waiver of appellate rights enforceable and

dismiss this appeal.


                                              Entered for the Court


                                              Scott M. Matheson, Jr.
                                              Circuit Judge




                                             9
