                            UNPUBLISHED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   Judge,   and   GREGORY   and   DAVIS,   Circuit
Judges.


Vacated and remanded for resentencing by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.
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 uncharged conduct as well as charged conduct.                                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

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

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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

resulting from the additional uncharged fraudulent tax returns

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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

order restitution in any criminal case to the extent agreed to

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

(2011).           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

conduct must be both related to the indicted conduct and result

from it.          Though they might be related, the (uncharged) fourteen

separately prepared tax returns do not clearly result from the

charged conduct.              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

of the offense conduct under the indictment without regard to

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

                                                  5
which you plead guilty,” effectively limiting restitution to the

conduct from 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 would be the charged conduct.

     The government makes much out of two statements made during

the plea agreement.        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 defense 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 conduct in the 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

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

                                        6
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 conduct.          Accordingly, this matter is

   VACATED AND REMANDED FOR RESENTENCING AS TO RESTITUTION ONLY.




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