     Case: 17-10449      Document: 00514482079        Page: 1     Date Filed: 05/22/2018




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

                                                                                FILED
                                     No. 17-10449                           May 22, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


              Plaintiff - Appellee

v.

DIWONE NOBLES, also known as “Pooh”,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-245-2


Before ELROD, COSTA, and HO, Circuit Judges.
PER CURIAM:*
      An indictment charged Diwone Nobles with conspiracy to commit sex
trafficking and three counts of sex trafficking. Nobles pleaded guilty to one of
the substantive counts pursuant to a plea agreement. That count involved the
sex trafficking of a minor identified as Jane Doe 1. Another substantive count
involved a different victim, identified as AV1. Although Nobles did not plead
guilty to a count involving AV1 (that is, either the conspiracy count or 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 17-10449
substantive count in which AV1 was the victim), the district court made Nobles
jointly and severally liable with codefendants for $153,160 in restitution to
AV1. Nobles did not object to the restitution award in the district court but
does now.
      The government argues that Nobles’s plea agreement waived this
appeal.     He agreed not to appeal his sentence unless it “exceed[ed] the
statutory maximum.”      We do not need to resolve whether an award of
restitution to a victim not authorized by the count of conviction is one that
exceeds the statutory maximum (there is tension in our caselaw on this point),
because Nobles cannot prevail even if the appellate waiver is not a bar.
      His inability to prevail is largely because of the plain error posture that
Nobles concedes applies to this claim he did not raise at sentencing. Among
other requirements that a defendant must meet before we will grant relief for
unpreserved claims of error, the defendant must show that any error was
obvious. United States v. Olano, 507 U.S. 725, 734 (1993).
      There may have been error. The count of conviction on its own did not
support awarding restitution to AV1 as she was not “directly and proximately
harmed” by that specific offense, which involved another victim. See United
States v. Espinoza, 677 F.3d 730, 732 (5th Cir. 2012) (quoting 18 U.S.C. §
3663(a)(2)). But a defendant may agree in a plea agreement to pay restitution
to “persons other than the victim of the offense.” 18 U.S.C. § 3663(a)(1)(A); see
also § 3663(a)(3). This prevents the government from having to force the
defendant to plead guilty to a large number of counts in order to achieve
restitution for all victims. These agreements usually take the following form:
the defendant agrees to pay “restitution to victims or to the community which
may be mandatory under the law, and which [he] agrees may include
restitution arising from all relevant conduct, not limited to that arising from
the offenses of conviction alone.” United States v. Miller, 406 F.3d 323, 330
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                                 No. 17-10449
(5th Cir. 2005). Or the plea agreement could be even more specific and list the
particular victims like AV1 to whom restitution will be paid even though they
are not part of the offense of conviction. Nobles’s agreement did not take either
of those paths. It included only the first part of the standard language as he
agreed that the “maximum penalties the Court can impose include . . .
restitution to victims or to the community, which may be mandatory under the
law.” Missing is the language that typically follows making clear that the
restitution will include all relevant conduct not limited to the harm caused by
the offense of conviction. The government argues that the shortened version
is enough because AV1 qualifies as part of “the community.” But if that
language suffices, then the “relevant conduct” and “not limited to the offense
of conviction” language that often follows in plea agreements would be
superfluous. Nobles also points out that the reference to the “community” may
invoke a legal concept that applies to drug crimes, which are unusual in that
they allow restitution payable to the government for “public harm.” See 18
U.S.C. § 3663(c). And as with other contracts, ambiguities in plea agreements
are construed against the drafter, which is the government. United States v.
Roberts, 624 F.3d 241, 245 (5th Cir. 2010) (quoting United States v. Elayshi,
554 F.3d 480, 501 (2008)). So Nobles has a colorable argument that the plea
agreement did not cover victims of unadjudicated counts like AV1.
      But his argument is not obviously correct, which is what plain error
review requires.     No cases have held that language like that included in
Nobles’s plea agreement does not allow restitution for victims beyond the
offense of conviction. United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009)
(“We ordinarily do not find plain error when we have not previously addressed
an issue.” (quoting United States v. Lomas, 304 F. App’x 300, 301 (5th Cir.
2008))). Nor is it unreasonable to contend as the government does that AV1
qualifies as one of the “victims” or as a harmed member of the “community.”
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                               No. 17-10449
Nobles thus cannot demonstrate that the district court clearly or obviously
erred in awarding restitution to AV1. Its judgment is AFFIRMED.




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