                          REVISED NOVEMBER 21, 2012

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


                                             No. 11-20622                    FILED
                                                                        October 30, 2012

                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk

                                                     Plaintiff - Appellee

v.

TED RUSSELL SCHWARTZ MURRAY,

                                                     Defendant - Appellant

------------------------------------------

UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee

v.

TED RUSSELL SCHWARTZ MURRAY, JEFFREY CARL WIGGINTON, SR.,
DAVID ISAAC LAPIN,

                                                     Defendants - Appellants


                      Appeals from the United States District Court
                           for the Southern District of Texas



Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
                                        No. 11-20622


       Federal district courts have only limited authority to modify final
judgments in criminal cases. The district court reopened three sentences that it
had imposed more than six months earlier, adding to each a requirement that
the defendant make restitution. Because the court lacked the authority to do so,
we reverse.


                                               I
       These are the consolidated appeals of Ted Murray, David Lapin, and
Jeffrey Wigginton. In a 24-count indictment, each was charged with mail fraud,1
conspiracy to commit mail fraud,2 securities fraud,3 and money laundering.4
Lapin and Wigginton each pleaded guilty: Lapin to misprision of felony,5 charged
against him in a second superseding information, and Wigginton to conspiracy
to commit mail and securities fraud.6 Murray tried his case to a jury, which
convicted him on all but the money laundering counts.7
       Defendants’ convictions arose out of a Ponzi scheme, the details of which
we have described.8 These convictions are not at issue in this appeal. Nor are the
sentences that defendants received in or before March 2010. Defendants



       1
           See 18 U.S.C. §§ 2, 1341.
       2
           See id. at § 371.
       3
           See 15 U.S.C. § 78j(b).
       4
           See 18 U.S.C. § 1957.
       5
           See id. at § 4.
       6
           See id. at § 371.
       7
         Murray was earlier charged with two counts of making and subscribing a false return,
in violation of 26 U.S.C. § 7206(1). That case was consolidated into the case against all three
defendants. The government dismissed the money laundering counts.
       8
           See United States v. Murray, 648 F.3d 251, 252–53 (5th Cir. 2011).

                                               2
                                     No. 11-20622

challenge only the restitution order later entered against them, the pertinent
circumstances surrounding which are as follows.
      By February 16, 2010, each of the defendants had either pleaded guilty or
been convicted by a jury.9 A separate Presentence Investigation Report (“PSR”)
was prepared for each defendant. The PSRs indicated that restitution was “not
applicable” pursuant to 18 U.S.C. § 3663A(c)(3),10 findings which the district
court adopted.
      Wigginton’s plea agreement contained several concessions. He agreed to
pay “full restitution to the victim(s) regardless of the counts of conviction”;
admitted“that any fine or restitution imposed by the Court will be due and
payable immediately upon sentencing”; and pledged that he would “not attempt
to avoid or delay punishment.” Wigginton also agreed to “waive the right to
appeal the sentence imposed or the manner in which it was determined,” unless
the sentence exceeded the statutory maximum.
      The district court sentenced each defendant on or before March 1, 2010.11
None of the sentences required restitution and none deferred determination of
the amount of restitution until a later date. The “Criminal Monetary Penalties”
form for each listed the amount of restitution ordered as $0.00. The district court
noted that restitution was “not applicable” for defendants Lapin and Murray,
and for Wigginton, it further specified that restitution was not mandatory
pursuant to 18 U.S.C. § 3663A(c)(3)(B).
      Sentences notwithstanding, proceedings below continued. On May 28,
2010, the government filed a motion seeking restitution under the Mandatory



      9
       On August 11, 2008, Wigginton pleaded guilty. On October 21, 2008, a jury convicted
Murray. On February 16, 2010, Lapin pleaded guilty.
      10
         Wigginton and Lapin’s PSRs also noted that “[r]estitution is incapable of
determination in this case.”
      11
         The district court sentenced Murray on November 23, 2009, Wigginton on December
21, 2009, and Lapin on March 1, 2010.

                                            3
                                         No. 11-20622

Victims Restitution Act of 1996. Each defendant objected and a hearing on the
motion followed. On October 27, 2010, the court granted the government’s
motion and scheduled a hearing for November 19, 2010, to determine the
amount of restitution owed. Several hearings followed, the last on June 1, 2011.
The district court ultimately calculated restitution on August 23, 2011, setting
the amount of restitution owed at $17,564,534.21.


                                                II
      Defendants raise several objections to the district court’s restitution order.
They argue that the court lacked authority to issue the order when it did and
challenge the way in which it calculated the amount of restitution owed. One of
them complains that the court should have apportioned liability, if any, rather
than ordering joint and several liability. The government disputes each of these
contentions and further argues that Wigginton waived his right to appeal. We
review de novo both the legality of a restitution order12 and the validity of an
appeal waiver.13 We will not reach the other alleged errors.


                                                 A
      A trial judge lacks authority to correct a sentencing error unless Congress
has provided otherwise.14 Outside of such a provision of authority,15 errors at
sentencing may be corrected only on appeal. The court below amended
defendants’ sentences, requiring defendants to make restitution to their victims.
We are pointed to no potential source of authority for this change of sentence
except the Mandatory Victims Restitution Act of 1996 (MVRA).


      12
           United States v. Arledge, 553 F.3d 881, 897 (5th Cir. 2008).
      13
           United States v. Burns, 433 F.3d 442, 445 (5th Cir. 2005).
      14
           See United States v. Addonizio, 442 U.S. 178, 189 and n.16 (1979).
      15
           See, e.g., 18 U.S.C. § 3582(c); see also FED. R. CRIM. P. 35.

                                                 4
                                        No. 11-20622

       The MVRA provides that “[n]otwithstanding any other provision of law,
when sentencing a defendant convicted of an offense described in subsection (c),
the court shall order . . . that the defendant make restitution to the victim of the
offense.”16 In Dolan v. United States, the Supreme Court suggested that this
provision might authorize a district court to reopen a final sentencing judgment
in certain circumstances.17 That suggestion is of no consequence here, however,
because the “shall order” provision does not apply to defendants’ sentences.
       In pertinent part, Title 18 of the United States Code, Section 3663A,
subsection (c) provides:
       (1) This section shall apply in all sentencing proceedings for
       convictions of, or plea agreements relating to charges for, any
       offense-- (A) that is . . . (ii) an offense against property under this
       title . . . including any offense committed by fraud or deceit . . . and
       (B) in which an identifiable victim or victims has suffered . . .
       pecuniary loss.
                                           ***
       (3) This section shall not apply in the case of an offense described in
       paragraph (1)(A)(ii) if the court finds, from facts on the record, that--
       (A) the number of identifiable victims is so large as to make
       restitution impracticable; or (B) determining complex issues of fact
       related to the cause or amount of the victim’s losses would
       complicate or prolong the sentencing process to a degree that the
       need to provide restitution to any victim is outweighed by the
       burden on the sentencing process.18
In short, when a district court invokes § 3663A(c)(3), the “shall order” provision
in § 3663A(a)(1) is inapplicable—and does not authorize a district court to
reopen a final sentencing judgment.



       16
            18 U.S.C. § 3663A(a)(1) (emphasis added).
       17
         Compare 130 S. Ct. 2533, 2543 (2010) with id. at 2546 (Roberts, C.J., dissenting)
(“The rule is that a trial court cannot alter a sentence after the time of sentencing. Section
3664(d)(5) is a limited exception to that rule. If the limits are exceeded the exception does not
apply, and the general rule takes over—the sentence cannot be changed to add a restitution
provision.”).
       18
            18 U.S.C. § 3663A(c) (emphasis added).

                                               5
                                       No. 11-20622

       The district court invoked § 3663A(c)(3) when sentencing these defendants.
Each defendant’s PSR found that restitution was “not applicable” pursuant to
§ 3663A(c)(3). The district court adopted those findings. It explicitly indicated
that restitution was not mandatory in Wigginton’s case, pursuant to §
3663A(c)(3)(B). And although the court instead indicated that restitution was not
applicable with respect to Murray and Lapin, we have no doubt that the court
made the requisite findings by adopting defendants’ PSRs.19
       Those findings distinguish this case from Dolan. Section 3663(A)(c)(3)
reaches only crimes covered by § 3663A(c)(1)(A)(ii), which addresses “offense[s]
against property.”20 The Supreme Court did not discuss § 3663A(c)(3) in the
Dolan case, and for good reason: The defendant in Dolan “pleaded guilty to a
federal charge of assault resulting in serious bodily injury,” rather than an
offense against property.21
       We therefore hold that when a federal district court sentences a defendant
without ordering restitution, and it finds, from facts on the record, that §
3663A(c)(3) applies, then § 3663A(a)’s “shall order” provision does not authorize
that court to reopen its final sentencing judgment to add an order of




       19
          Indeed, in its October order requiring restitution, the court conflated the import of
§ 3663A(c)(3)—that restitution is not mandatory—with the box that it ultimately checked on
two sentencing forms: that restitution is not applicable. The court explained:
       The statute also states that restitution shall not apply if “the number of victims
       is so large as to make restitution impracticable.” 18 U.S.C[.] § 3663A(c)(3)(A).
       Here, each of the Defendant’s PSRs found that the number of victims was
       indeterminable. Therefore, the PSRs stated that restitution was not applicable
       under the statute.
This statement confirms our understanding of the court’s earlier judgments, and is not
inconsistent with the court’s selection of the § 3663A(c)(3)(B) box when sentencing Wigginton.
       20
          18 U.S.C. § 3663A(c)(1)(A)(ii). We express no opinion regarding whether Lapin’s
conviction under 18 U.S.C. § 4 satisfies the requirements of § 3663A(c)(1)(A)(ii).
       21
         130 S. Ct. at 2536. The Court was not explicit about which provision of the MVRA
made restitution in mandatory in Dolan; we understand it to rely on § 3663A(c)(1)(A)(i), which
expressly reaches certain “crime[s] of violence.”

                                              6
                                        No. 11-20622

restitution.22 Accordingly, the district court lacked authority to modify the
defendants’ sentences. Whether Wigginton can benefit from this conclusion
depends on whether he waived his right to appeal this error.


                                               B
       A defendant may waive his statutory right to appeal if he does so
knowingly and voluntarily.23 Even an enforceable waiver is not controlling,
however, unless its plain language unambiguously applies to the circumstances
at issue.24
       The district court initially sentenced Wigginton on December 14, 2009.
Wigginton concedes that he waived his right to appeal that sentence. He argues,
however, that “[t]he revision ordered to [his] sentence was not initiated . . . as
part of the sentencing process” to which his waiver applied. We agree.
       The plain language of Wigginton’s agreement is capable of at least two
constructions. On one reading, Wigginton agreed that the court could sentence
him at any time and to almost any penalty. That reading is supported most
strongly by the clause indicating that Wigginton “may appeal only a sentence
imposed above the statutory maximum.”25 On another reading, however,
Wigginton agreed not to appeal only “a sentence imposed” during the authorized
sentencing process.




       22
         We express no opinion regarding whether compliance with the procedures in §
3664(d)(5) would provide the necessary authorization. Nor do we suggest that finality
considerations preclude a sentencing court from “fill[ing] in [a] blank” left open during
sentencing. Dolan, 130 S. Ct. at 2543.
       23
            See United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
       24
         See id. (examining scope of waiver based on plain language); see also United States
v. Harris, 434 F.3d 767, 770 (5th Cir. 2005) (“[A]ny ambiguity must be construed in favor of
the defendant’s right to appeal.”).
       25
            Emphasis in original.

                                               7
                                       No. 11-20622

       Several provisions in Wigginton’s agreement suggest that the latter
interpretation more accurately reflects the parties’ understanding. For example,
Wigginton agreed that “any fine or restitution imposed by the Court [would] be
due and payable immediately upon sentencing”—not upon a later revision to his
sentence. Wigginton further agreed that if the court “impose[d] a fine” or ordered
“the payment of restitution,” he would “make complete financial disclosure by
truthfully executing a sworn financial statement immediately following his
sentencing.” Had the court ordered Wigginton to pay a fine during his original
sentencing, he would have been obligated to execute such a statement. And if
“sentencing” includes the court’s October order to make restitution, then he
would presumably have been obligated to execute another statement after that
order, too. But the plea agreement does not contemplate two sworn financial
statements: it obligates Wigginton to execute a statement—once.
       In Dolan, four Justices distinguished between “restitution orders at
sentencing” and restitution orders made “after sentencing has concluded.”26 They
did so in dissent. But we have previously explained that the “language in [an]
appellate waiver must be afforded its plain meaning in accord with the intent of
the parties at the time the plea agreement was executed,” even if that language
is given a different, technical meaning by the Supreme Court.27 In 2010, four
Justices understood the word “sentencing” to carry with it strict temporal
limitations. We cannot and do not conclude that Wigginton’s plea agreement,


       26
        United States v. Dolan, 130 S. Ct. 2533, 2545 (2010) (Roberts, C.J., dissenting)
(emphasis in original).
       27
           United States v. Cortez, 413 F.3d 502, 503 (5th Cir. 2005) (distinguishing the plain
meaning of the phrase, “a sentence exceeding the statutory maximum punishment,” from the
meaning of “statutory maximum as that term was defined in Blakely” v. Washington, 542 U.S.
296 (2004)). The phrase “statutory maximum” may have a different meaning in the restitution
context; we do not reach the issue. See United States v. Broughton-Jones, 71 F.3d 1143, 1147
(4th Cir. 1995) (“Because a restitution order imposed when it is not authorized . . . is no less
‘illegal’ than a sentence of imprisonment that exceeds the statutory maximum, appeals
challenging the legality of restitution orders are similarly outside the scope of a defendant's
otherwise valid appeal waiver.”).

                                               8
                                      No. 11-20622

signed in 2008, unambiguously rejected that understanding. Accordingly,
Wigginton did not waive his right to appeal the timing of the district court’s
restitution order.28
                                           ***
       The district court lacked authority to order restitution when it did.
Wigginton retained the right to appeal this error. We therefore REVERSE the
district court’s restitution order with respect to each defendant.




       28
          Because Wigginton’s waiver is ambiguous, we need not determine whether the district
court’s lack of authority to modify Wigginton’s sentence was a jurisdictional defect. See
Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (“[S]ubject-matter jurisdiction, because it
involves a court's power to hear a case, can never be forfeited or waived.” (quoting United
States v. Cotton, 535 U.S. 625, 630 (2002))).

                                             9
