                                              FILED: June 23, 2011

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                           No. 10-4050
                       (1:09-cr-00072-WO-1)


UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

         v.

RONALD WAYNE BRYANT,


              Defendant - Appellant.




                            O R D E R


    The Court withdraws the opinion filed June 23, 2011, and

substitutes the attached opinion.



                                    For the Court – By Direction


                                         /s/ Patricia S. Connor

                                                Clerk
                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4050


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

RONALD WAYNE BRYANT,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greenboro. William L. Osteen,
Jr., District Judge. (1:09-cr-00072-WO-1)


Argued:   May 12, 2011                    Decided:   June 23, 2011


Before TRAXLER, Chief Circuit Judge, GREGORY and DAVIS, Circuit
Judges.


Vacated and remanded by unpublished opinion. Judge Gregory
wrote the opinion, in which Chief Judge Traxler and Judge Davis
joined.


ARGUED: Mark Everette Edwards, EDWARDS & TRENKLE, PLLC, Durham,
North Carolina, for Appellant. Harry L. Hobgood, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee. ON BRIEF: Anna Mills Wagoner, United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.


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GREGORY, Circuit Judge:

               This     case       involves      interpreting          the       scope    of    the

language     in    a     restitution         clause       of   a     plea    agreement.          On

November 24, 2009, in the Middle District of North Carolina,

Ronald Wayne Bryant was sentenced to twenty-six months in prison

and ordered to pay $110,325 in restitution.                            Bryant only appeals

the    order      of    restitution,            arguing      that     the    district       court

misconstrued           the        plea    agreement        when      it      held    that       the

restitution clause encompassed losses from uncharged offenses as

well as charged offenses.                   We agree and remand this matter for

resentencing       as        to    restitution        only     in    accordance          with   our

decision.



                                                 I.

       Bryant     was     indicted         on   thirteen       counts       of    making    false

claims to the IRS, in violation of 18 U.S.C. § 287 (2006).                                      For

our purposes, it is uncontested that Bryant submitted twenty-

seven false tax returns from 2002 until 2006.                               Only thirteen of

those false returns were included in the indictment.                                     Following

a    Rule   11    plea       colloquy,       Bryant    pled        guilty    to     two    of   the

thirteen counts with a written plea agreement.

       The restitution clause of the plea agreement stated that

Bryant “agree[d] to pay restitution for the total loss suffered

by    all   victims          which       resulted     from     and    is     related       to   the

                                                  3
offenses charged in the Indictment.”            J.A. 19 (emphasis added).

During the Rule 11 colloquy, the district court specifically

reviewed the restitution clause with Bryant, explaining that it

allowed the court to order “restitution for all of the offense

conduct in the case.”          J.A. 28.     When asked for clarification,

the district court further stated that “you are agreeing that

the [c]ourt can order restitution for all of the offense conduct

under the indictment without regard to whether it would fall

under a dismissed count or a count to which you plead guilty.”

J.A. 29 (emphasis added).

    The    presentence      report     calculated      Bryant’s      guidelines

sentence   to    be    twenty-one     to    twenty-seven      months.        The

presentence     report    also    calculated     his   restitution      to    be

$110,325   including     all     twenty-seven    fraudulent    tax    returns.

Bryant objected to the amount of restitution.                 He argued that

the restitution should be limited to losses from the thirteen

offenses charged in the indictment, which totaled $54,295.

    At the sentencing hearing, Bryant renewed his objection to

the amount of restitution.          He argued that his understanding of

the plea agreement was that he would pay restitution for the

indicted charges, including those that were dismissed, but not

for any conduct outside the indictment.             After hearing from the

government, the district court found that the broadly worded

language   of    the     restitution       provision   encompassed       losses

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resulting from the additional uncharged fraudulent tax returns

filed by Bryant.            The district court sentenced Bryant to twenty-

six months’ imprisonment and ordered restitution in the amount

of $110,325.     Bryant timely appealed.



                                           II.

       We review orders of restitution for abuse of discretion.

United States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010).                           The

district court may order restitution for non-convicted conduct

based on a defendant’s plea agreement.                      18 U.S.C. § 3663(a)(3)

(2006).     When, as here, the parties dispute the interpretation

of    language   in    the     plea   agreement,       we    apply    basic   contract

principles.      United States v. Jordan, 509 F.3d 191, 195 (4th

Cir. 2007). However, “we analyze a plea agreement with greater

scrutiny than we would apply to a commercial contract. We thus

hold the Government to a greater degree of responsibility than

the    defendant        for     imprecisions         or     ambiguities       in     plea

agreements.”          Id.    509 F.3d      at 196     (citations and quotations

omitted).

       In Hughey v. United States, the Supreme Court held that in

the absence      of    clear statutory authority to do so, district

courts    lacked       the     authority        to   order     restitution         beyond

convicted   counts.           495   U.S.    411,     442    (1990).     In    response,

Congress passed a statute which stated that “courts may also

                                            5
order restitution in any criminal case to the extent agreed to

by the parties in a plea agreement.”                           18 U.S.C. § 3663 (a)(3)

(2006).       This essentially overturned Hughey by allowing plea

agreements to expand the courts’ authority to order restitution.

       In our analysis, we first turn to the language of the plea

agreement. It states that restitution can be ordered for losses

“which resulted from and is related to the offenses charged in

the Indictment.”            J.A. 19       (emphasis           added).        Therefore,      the

losses covered by the order of restitution must be both related

to the indicted offenses and result from them.                                  Though they

might be related to Bryant’s “offense conduct,” the losses from

the (uncharged) fourteen separately prepared tax returns clearly

do   not     “result      from”    the    charged           offenses.        Based    on    this

record, each unique tax return was prepared and filed separately

and did not occur as the result of another tax return being

filed.       Therefore, we conclude that the language in the plea

agreement can be fairly interpreted as ambiguous.

       Where there are ambiguities in a plea agreement, courts may

look    to   extrinsic      evidence        to       show    that    the    parties    to   the

agreement        had    “mutually        manifested          their    assent     to    []    an

interpretation          Jordan,     509     F.3d       at     200    (citation       omitted).

Here,      the    district        court’s        guidance       to    the     defendant      on

restitution        at    the   plea       colloquy          cleared     up    any     existing

ambiguities.           The court explained that restitution included “all

                                                 6
of the offense conduct under the indictment without regard to

whether it would fall under a dismissed count or a count to

which you plead guilty,” effectively limiting restitution to the

losses   arising    from     charges   in     the   indictment.       J.A.   29

(emphasis added).        The district court’s explanation confirms the

defendant’s interpretation on appeal, and makes clear that the

defendant correctly believed that in pleading guilty, the scope

of his restitution obligation would be the charged offenses.

    The government makes much out of two statements made during

the plea hearing.          At one point, defense counsel noted that

“[Bryant] agrees to pay restitution for the total loss suffered

by all victims in the case.”               J.A. 26.      Later, the district

court noted that the defendant agreed to pay “restitution for

all of the offense conduct in the case.”                 J.A. 28.     However,

both of these statements were made before the court’s above

quoted      clarifying    statement    and do not clearly manifest an

intent   to   include     the    uncharged    offenses    in   the   order   of

restitution.

    Further, the government argues that “related to” must mean

the additional tax returns otherwise it would be superfluous

language.      Bryant      argues   that     “related    to”   was   meant   to

encompass legal expenses and fees for the people named on the

illegal tax returns.            However, the district court determined

that the government was the only victim in this scheme and thus

                                       7
these related expenses, anticipated in the plea agreement, were

not applicable.    Since “related to” is susceptible to multiple

interpretations, we construe it against the government and find

that it   was meant to encompass         only   the    extraneous expenses

suffered by Bryant’s clients.     United States v. Harvey, 791 F.2d

294, 300 (4th Cir. 1986).



                                       III.

    In    conclusion,    we    find     that     the    plea        agreement’s

restitution clause was, at best, ambiguous and thus, construing

ambiguities   against   the   government,       find   that    it    does   not

encompass uncharged offenses.     Accordingly, this matter is



   VACATED AND REMANDED FOR RESENTENCING AS TO RESTITUTION ONLY.




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