10-2975-cr
United States v. Shaw

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 16th day
of November, two thousand eleven.

Present:
            ROBERT D. SACK,
            PETER W. HALL,
            RAYMOND J. LOHIER, JR.,
                              Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

                  Appellee,

                  v.                                                 No. 10-2975-cr

STEVEN F. SHAW,

            Defendant-Appellant.
________________________________________________

FOR APPELLANT:                  George E. Baird, Assistant Federal Public Defender (Molly
                                Kathleen Corbett, on the brief), for Lisa A. Peebles, Acting Federal
                                Public Defender, Northern District of New York, Albany, NY.

FOR APPELLEE:           Tina E. Sciocchetti, Assistant United States Attorney, for Richard
                        S. Hartunian, United States Attorney for the Northern District of
                        New York, Albany, NY.
________________________________________________
       Appeal from the United States District Court for the Northern District of New York

(McAvoy, J.). ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED,

and DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant-Appellant Steven F. Shaw appeals from a judgment entered by the district

court (McAvoy, J.), convicting him, following a guilty plea, of one count of making false

statements in a loan application (18 U.S.C. §§ 1014, 2), one count of attempted tax evasion for

the 2005 calendar year (26 U.S.C. § 7201), and one count of embezzlement from a health care

benefit program (18 U.S.C. § 669). The district court sentenced Shaw principally to thirty-six

months’ imprisonment on each count, to run concurrently, and with respect to the tax evasion

count, the court ordered restitution in the amount of $122,530, which represented the taxes Shaw

owed for calendar years 2004, 2005, and 2006. Shaw appeals only the order of restitution

imposed with respect to his conviction under 26 U.S.C. § 7201. We assume the parties’

familiarity with the underlying facts, procedural history of the case, and issues on appeal.

       We ordinarily review a district court’s restitution order for abuse of discretion, but

because this issue was raised for the first time on appeal, we instead review for plain error. See,

e.g., United States v. Middlemiss, 217 F.3d 112, 121 (2d Cir. 2000). “[I]mproperly ordered

restitution constitutes an illegal sentence amounting to plain error.” United States v. Fiore, 381

F.3d 89, 98 (2d Cir. 1994) (internal quotation marks omitted). It is well settled that a district

court may not order restitution unless authorized by statute. See United States v. Pescatore, 637

F.3d 128, 139 (2d Cir. 2011); United States v. Helmsley, 941 F.2d 71, 101 (2d Cir. 1991). The

two principal federal restitution statutes, 18 U.S.C. § 3663 (Victim and Witness Protection Act,

“VWPA”) and 18 U.S.C. § 3663A (Mandatory Victims Restitution Act, “MVRA”), do not


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directly permit restitution for violations of 26 U.S.C. § 7201 in the absence of a plea agreement.

See 18 U.S.C. § 3663(a)(1)(A) (enumerating covered offenses); id. § 3663A(c)(1) (same); see

also United States v. Bok, 156 F.3d 157, 166 (2d Cir. 1998) (recognizing that 26 U.S.C. § 7201 is

not one of the offenses for which 18 U.S.C. § 3663 authorizes restitution). Nevertheless, a

district court “may also 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); see also 18 U.S.C. § 3663A(a)(3). In

United States v. Gottesman, 122 F.3d 150 (2d Cir. 1997), we interpreted this section to mean: (1)

that a court “can order restitution only in an amount not to exceed that agreed upon by the

parties,” and (2) that a court “can order restitution only if the parties agreed that a court may do

so.” Id. at 152 (emphasis in original). In Gottesman, the plea agreement provided that

Gottesman would “pay past taxes due and owing . . . on such terms and conditions as will be

agreed upon between [him] and the IRS.” Id. (first alteration in original). Based on those terms,

we held that “[w]hile the government certainly contemplated that Gottesman would make tax

payments, it was also apparent that the terms of a payment were yet to be negotiated by

Gottesman and the IRS—not imposed by court order.” Id. Thus, because “[c]ourt-ordered

restitution . . . was not part of the bargain,” id., we vacated the district court’s restitution order,

id. at 153.

        Shaw contends that, like in Gottesman, the terms of his plea agreement did not authorize

the district court to impose restitution for his conviction under 26 U.S.C. § 7201. We disagree.

Shaw’s plea agreement expressly obligated him to “pay all taxes, penalties, and interest

ultimately determined to be due and owing to the United States, as directed by the Court.”

Gov’t Appendix at 17 (emphasis added). By its plain language, therefore, and unlike in


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Gottesman, the plea agreement explicitly contemplated that the district court would order Shaw

to pay all taxes owed to the United States. The district court’s order imposing restitution was

thus consistent with both the plea agreement and 18 U.S.C. § 3663(a)(3).

       Additionally, Shaw asserts that even if the court was authorized to order restitution for

the taxes he failed to pay during the 2005 calendar year, it erred by including in its order taxes

owed for the 2004 and 2006 calendar years, as those were not part of the basis for his conviction

under 26 U.S.C. § 7201. Shaw, however, fails to appreciate the sentencing court’s authority

under 18 U.S.C. § 3663(a)(3). Although a district court’s restitution order ordinarily is limited

by the loss charged in the count of conviction, see, e.g., Hughey v. United States, 495 U.S. 411,

420 (1990), the order may exceed that amount to the extent agreed upon by the parties in the plea

agreement, see United States v. Silkowski, 32 F.3d 682, 688-89 (2d Cir. 1994) (recognizing that

18 U.S.C. § 3663(a)(3) “clarif[ied] the scope of Hughey as allowing restitution beyond the

offense of conviction when the defendant agrees to such in a plea agreement” (internal quotation

marks omitted)). Here, Shaw agreed to “provide timely, full, complete and accurate information

to the Internal Revenue Service for the calendar years 2004 through 2006 and fully cooperate in

the determination and payment of any income taxes, penalties, and interest that may be due and

owing to the United States for those years.” (emphasis added). Thus, while there is no question

that Shaw’s conviction under 26 U.S.C. § 7201 was based solely on his non-payment of taxes for

the 2005 calendar year, he expressly agreed to pay restitution for any income taxes owed for the

calendar years 2004, 2005, and 2006. His challenge is unavailing.

       The judgment of the district court is AFFIRMED.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK

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