                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 10a0351n.06

                                                   No. 08-3903

                               UNITED STATES COURT OF APPEALS                                       FILED
                                    FOR THE SIXTH CIRCUIT                                       Jun 08, 2010
                                                                                         LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,

         Plaintiff–Appellee,
                                                              ON APPEAL FROM THE UNITED
v.                                                            STATES DISTRICT COURT FOR THE
                                                              NORTHERN DISTRICT OF OHIO
CHRISTOPHER McGLOWN,

         Defendant–Appellant.                                 OPINION

__________________________________/




         Before: CLAY and GILMAN, Circuit Judges; and ZATKOFF, District Judge.*

         LAWRENCE P. ZATKOFF, District Judge. On October 22, 2007, Christopher McGlown

entered pleas of guilty to one count of bank fraud, in violation of 18 U.S.C. § 1344, and one count

of uttering and possessing counterfeit checks, in violation of 18 U.S.C. § 513(a). The district court

imposed a term of imprisonment of 26 months on each count, to be served concurrently. The district

court also ordered that McGlown pay restitution in the amount of $116,904 to Huntington Bank. For

the reasons set forth below, we DISMISS this appeal on the basis of McGlown’s waiver of his

appellate rights.




         *
          The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District of Michigan, sitting
by designation.
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                                       I. BACKGROUND

       At the time he pled guilty, McGlown was represented by Attorney Merle R. Dech, Jr.

Following McGlown’s guilty plea, the U.S. Probation Department prepared a presentence

investigation report. McGlown, through Attorney Dech, filed objections to the presentence

investigation report, wherein he asserted that he was responsible only for approximately $25,000 in

losses to Sky Bank (the predecessor to Huntington Bank), not the $116,904 loss amount determined

by the U.S. Probation Department. On May 30, 2008, the district court conducted an evidentiary

hearing, at which McGlown was granted leave to proceed pro se, with Attorney Dech designated as

stand-by counsel. At the evidentiary hearing, Secret Service Special Agent Jennifer Thompson

testified that, after being advised by Sky Bank that counterfeit checks were being drawn on Sky Bank

accounts, she conducted an investigation. The investigation led her to conclude that McGlown was

the manufacturer of numerous counterfeit checks totaling $128,101 drawn on Sky Bank accounts.1

       As part of her investigation, Thompson participated in the execution of a search warrant at

343 Mentor, Toledo, Ohio. McGlown was present during the search. A number of items were

seized, including computer equipment and software, numerous altered Ohio identification cards

(some with McGlown’s photograph), counterfeit checks, boxes of check stock used to create

counterfeit checks, debit cards and papers that included individual identifiers such as names, social

security numbers and Sky Bank account numbers. A scan of the recovered computer equipment

revealed check images, identification images, alias names and Sky Bank account numbers related


       1
         This higher amount was determined post-indictment, but McGlown was sentenced and
ordered to pay restitution based on the $116,904 amount specified in the indictment.

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to this case. Numerous handwritten Sky Bank account numbers comparable to known samples of

McGlown’s handwriting were found in a notebook in McGlown’s bag.

       Thompson also testified that she reviewed surveillance videos of McGlown passing

counterfeit checks, and she testified that some store employees presented with the checks identified

McGlown in photo lineups. Thompson further testified that, although Sky Bank identified the

amount of loss, her own review of the case enabled her to generate a spreadsheet detailing the

individual transactions. Ultimately, Thompson identified 29 aliases used to cash 196 checks on 49

bank account numbers. Thompson testified in detail (approximately 22 pages of transcript) how

McGlown was associated with each alias name and the various Sky Bank accounts from which

counterfeit or forged checks were drawn.

       On July 7, 2008, the district court held McGlown’s sentencing hearing. At that time,

McGlown withdrew all of his objections to the presentence investigation report, including his

objection to the amount of the loss indicated in the indictment:

               THE COURT: It is also my understanding, Mr. McGlown, that you are
       withdrawing your objection to and will admit to the amount of the loss as indicated
       in the indictment of $116,904; is that correct?

               THE DEFENDANT: That is correct.

McGlown also waived his right to appeal at the sentencing hearing, except in limited instances:

               THE COURT: It is also my understanding that at this juncture the - - you
       have discussed with counsel, Mr. Deck [sic], a waiver of right to appeal; am I
       correct?

               THE DEFENDANT: You are correct, Your Honor.



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               THE COURT: I want to read to you the right to appeal waiver to make sure
       you understand it, and I wish that you will listen very carefully, as you generally have
       in these hearings.

               You acknowledge having been advised by your attorney of your right in
       limited circumstances to appeal the conviction or sentence in this case, including
       your right to appeal conferred by 18 United States Code, Section 3742, and to
       challenge the conviction or sentence collaterally through a post conviction
       proceeding, including that under Section 2255 of 28 United States Code.

                You expressly are waiving your right to those appeals and those collateral
       attacks except as follows: You reserve your right to appeal, A, any punishment in
       excess of the statutory minimum - - or maximum, I’m sorry; B, any sentence to the
       extent it exceeds the maximum of the sentencing range determined by the Sentencing
       Guidelines in accordance with the sentencing stipulations and computations which
       I will outline to you in a moment. And the use of the criminal history category found
       applicable by me.

               Nothing I’ve just read to you shall act to bar you from perfecting any legal
       remedies you may otherwise have on appeal for collateral attack respecting claims
       of ineffective assistance of counsel or prosecutorial misconduct.

               Do you understand what I’ve just told you?

               THE DEFENDANT: Yes, Your Honor.

               THE COURT: Do you agree to that waiver?

               THE DEFENDANT: Yes, Your Honor.

After stating that the applicable advisory Guideline range was 24 to 30 months, the district court

imposed a term of imprisonment of 26 months on each count, to be served concurrently. The district

court also ordered that McGlown pay restitution in the amount of $116,904 to Huntington Bank.



                                          II. ANALYSIS

A.     Waiver of Right to Appeal

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       On appeal, McGlown challenges the amount of restitution that the district court ordered him

to pay. McGlown expressly waived his right to appeal at the sentencing hearing, however, except

under two specific instances, neither of which is presented in this appeal. McGlown was sentenced

to 26 months imprisonment. Therefore, his sentence cannot be appealed because it: (1) does not

exceed the statutory maximums for bank fraud (30 years) or possession of counterfeit securities (10

years), and (2) is less than the 30-month maximum under the advisory Guideline range, the two

instances for which he preserved his appellate rights. We therefore conclude that McGlown waived

his right to appeal the amount of restitution imposed by the district court.

B.     Restitution Amount Imposed Not Clearly Erroneous

       Even if we considered the merits of McGlown’s appeal, however, we would conclude that

the district court did not err in imposing restitution in the amount of $116,904. We generally review

the amount of a restitution award for abuse of discretion. United States v. Wood, 364 F.3d 704, 714

(6th Cir. 2004). Where an appellant has waived or failed to make objections to the restitution award

at the time of sentencing, however, we will not set aside the district court’s determination unless it

constitutes plain error. Id. (citing United States v. Bondurant, 39 F.3d 665, 668 (6th Cir. 1994)).

To establish plain error, a defendant must show:

       (1) that an error occurred in the district court; (2) that the error was plain, i.e.,
       obvious and clear; (3) that the error affected defendant’s substantial rights; and (4)
       that this adverse impact seriously affected the fairness, integrity or public reputation
       of the judicial proceedings.

United States v. Schulte, 264 F.3d 656, 660 (6th Cir. 2001) (internal citations omitted).




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       The Mandatory Victims Restitution Act of 1996, 18 U.S.C. §§ 3663A-3664, requires that

defendant(s) pay restitution to identifiable victims who have suffered either physical injuries or

pecuniary losses as a result of certain criminal offenses. Those criminal offenses include crimes of

violence, offenses against property and offenses related to tampering with consumer products. See

18 U.S.C. §§ 3663A(c)(1)(A) and 3664(f)(1)(A). McGlown argues that he should not be responsible

for the entire restitution amount because additional persons were involved in the criminal scheme

for which he was convicted, a fact that is undisputed. McGlown relies on 18 U.S.C. § 3664(h) to

support his argument, but Section 3664(h) addresses situations where “the district court finds that

more than 1 defendant has contributed to the loss of a victim[.]” (emphasis added). In this case,

McGlown was the only person charged in the indictment.              Therefore, Section 3664(h) is

inapplicable.

       Moreover, even if there were multiple defendants or Section 3664(h) were interpreted to

apply when multiple persons were involved, Section 3664(h) explicitly gives a district court the

discretion to apply joint and several liability or to apportion liability based on the participants’

respective economic circumstances and contributions to the victim(s)’ losses. Based on the level of

McGlown’s involvement in the underlying criminal scheme (as testified to by Thompson), we do

not have a “definite and firm conviction that the trial court committed a clear error of judgment” in

holding McGlown responsible for the entire restitution amount. See United States v. Hunt, 521 F.3d

636, 648 (6th Cir. 2008), cert. den. 129 S.Ct. 2157 (2009) (internal citations omitted).

       McGlown also argues that the amount of loss was not established by a preponderance of the

evidence. Pursuant to Fed.R.Crim.P. 32(i)(3)(B), a district court is required to make adequate factual

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findings in calculating the loss amount when there is a “disputed portion of the presentence report

or other controverted matter.” United States v. Darwich, 337 F.3d 645, 666 (6th Cir. 2003).

McGlown states that, at the evidentiary hearing on May 30, 2008 and until the sentencing hearing

on July 7, 2008, he repeatedly asserted that only about $25,000 of the loss was attributable to him.

This argument, however, ignores the statements of McGlown at the sentencing hearing. At the

sentencing hearing, McGlown: (1) withdrew his objection to the conclusion of the U.S. Probation

Department in the presentence investigation report that Sky Bank had suffered losses of $116,904,

and (2) admitted that the amount of loss was $116,904. Accordingly, there was no disputed portion

of the presentence investigation report with respect to the amount of loss. Therefore, the district

court had the authority to find that the amount of loss was $116,904. Fed.R.Crim.P. 32(i)(3)(A). We,

therefore, conclude that the district court did not clearly err in ruling that the amount of loss was

$116,904.

                                       III. CONCLUSION

       For all of the reasons set forth above, we DISMISS this appeal on the basis of McGlown’s

waiver of his appellate rights.




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