                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 98-4153
                                      ___________

United States of America,                  *
                                           *
             Appellee,                     *
                                           *
      v.                                   * Appeal from the United States
                                           * District Court for the Western
Tynae K. Lester, also known as             * District of Missouri.
Gabriel Quiles,                            *
                                           *
             Appellant.                    *
                                      ___________

                            Submitted: October 28, 1999

                                 Filed: January 31, 2000
                                     ___________

Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Tynae K. Lester appeals from an order directing him to pay restitution in the
amount of $138,041.40. We decline to review Mr. Lester's arguments because in his
plea agreement with the government he specifically undertook "to pay any restitution
ordered by the District Court." We have held several times that a defendant's
agreement to pay the restitution that a district court orders is binding. See, e.g., United
States v. Williams, 128 F.3d 1239, 1240 (8th Cir. 1997), and United States v. Marsh,
932 F.2d 710, 713 (8th Cir. 1991). Such agreements are in fact specifically authorized
by statute: 18 U.S.C. § 3663(a)(3) states that "[t]he court may ... order restitution in
any criminal case to the extent agreed to by the parties in a plea agreement."

       Because Mr. Lester's agreement bars this appeal, we affirm the judgment of the
district court.

LOKEN, Circuit Judge, dissenting.

       I respectfully dissent. In my view, a plea agreement undertaking “to pay any
restitution ordered by the District Court” is not a knowing waiver of the right to appeal
an unlawful restitution order. In this case, rejecting the government’s argument at
sentencing for a lesser amount, the district court ordered Tynae Lester to pay restitution
for losses caused by his conspirators before he joined the conspiracy. That order is
contrary to our decision in United States v. Cain, 128 F.3d 1249, 1253 (8th Cir. 1997).
Accordingly, I would remand for resentencing in accordance with Cain.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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