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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                       Nos. 19-11666 & 19-12723
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:18-cr-00020-CEM-TBS-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                  versus

CHRISTOPHER RAY FAELLA,

                                                         Defendant-Appellant.


                      ________________________

               Appeals from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (July 10, 2020)

Before WILLIAM PRYOR, Chief Judge, and JORDAN and JILL PRYOR, Circuit
Judges.

PER CURIAM:
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      Christopher Ray Faella appeals the district court’s restitution award following

his convictions for receipt and possession of child pornography. He argues that the

district court abused its discretion by imposing a restitution amount without

considering the factors set forth in Paroline v. United States, 572 U.S. 434 (2014).

He also argues that the district court violated his due process rights by conducting

the restitution hearings in his absence.

      Because Mr. Faella signed a valid appeal waiver, and the Paroline claim is

within the scope of that waiver, we dismiss that portion of the appeal. As to the due

process claim, we assume without deciding that the appeal waiver does not

encompass a claim that the district court imposed sentence without Mr. Faella’s

presence. But we conclude that Mr. Faella has failed to demonstrate plain error on

his due process claim, and we affirm that aspect of the appeal.

                                           I

      Mr. Faella was charged by indictment with five counts of receipt of child

pornography in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1); one count of

possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and

(b)(2); and one count of being a felon in possession of a firearm in violation of

18 U.S.C. §§ 922(g)(1) and 924(a)(2). Mr. Faella entered into a written plea

agreement with the government in which he pled guilty to the receipt of child

pornography counts and the possession of child pornography count in exchange for



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the government’s promise to dismiss the felon-in-possession charge. The agreement

included a section on mandatory restitution, in which Mr. Faella agreed to make

restitution to known victims of his offenses, “for the full amount of the victims’

losses as determined by the Court.” D.E. 28 at 4. The agreement also stated that

Mr. Faella “understands and agrees that the Court, in addition to or in lieu of any

other penalty, shall order the defendant to make restitution to any victim of the

offenses . . . .” Id. at 12 (emphasis in original).

      The agreement contained a general appeal waiver in which Mr. Faella

“expressly waive[d] the right to appeal [his] sentence on any ground,” except:

      (a) the ground that the sentence exceeds the defendant’s applicable
      guidelines range as determined by the Court pursuant to the United
      States Sentencing Guidelines; (b) the ground that the sentence exceeds
      the statutory maximum penalty; or (c) the ground that the sentence
      violates the Eighth Amendment to the Constitution.

Id. at 16–17 (emphasis removed). The appeal waiver also allowed Mr. Faella to

appeal if the government appealed. Id.

      The agreement acknowledged that Mr. Faella was entering it voluntarily and

that he understood the nature of the offenses to which he was pleading guilty. See

id. at 17–18. He initialed every page of the agreement and, before his full signature

on the last page, he certified that the plea had been read by or to him in its entirety

and that he fully understood its terms. See id. at 26.




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      At the change of plea hearing, the district court explained the offenses to

which Mr. Faella was pleading guilty, the elements of those offenses that the

government would have to prove had the case gone to trial, and the maximum

penalties corresponding to the offenses.        The court then referenced the plea

agreement, which Mr. Faella acknowledged was in front of him.                The court

confirmed that Mr. Faella had initialed every page of the agreement and that he had

signed the agreement at the end, indicating he had a chance to review it with his

attorney and understood it. The court highlighted some of the major points in the

agreement, and generally pointed out that Mr. Faella had expressly waived the right

to appeal his sentence: “[Y]ou expressly waive the right to appeal your sentence in

accordance with the limitation set forth in your plea agreement. Does all this sound

familiar to you?” D.E. 120 at 6:20–24. The court accepted Mr. Faella’s guilty plea,

concluding that there was a factual basis for the plea and that Mr. Faella had

intelligently, freely, and voluntarily waived his rights in entering the plea.

      The probation office filed initial and final presentence investigation reports,

neither of which provided victim impact statements or contained a recommended

restitution amount. Two days before the sentencing hearing, the probation office

filed several victim impact statements and restitution requests contained in

voluminous supplements to the presentence report that the government had




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inadvertently failed to timely share with opposing counsel and the probation office.

The district court ultimately postponed the sentencing hearing to a later date.

      The probation office continued to file victim impact statements and restitution

requests in supplements to the presentence investigation report, all of which Mr.

Faella opposed. Owing to the number of victims who were still coming forward

with restitution requests, the government filed a motion to bifurcate the restitution

hearing.

      At the sentencing hearing, and over defense counsel’s objection, the district

court granted the government’s motion in part and scheduled the restitution hearing

for a later date, stating in its scheduling notice that “Defendant’s Presence is

required.” D.E. 76. Mr. Faella was present at the sentencing hearing and spoke

during the allocution portion. The court imposed concurrent 168-month terms of

imprisonment for the child pornography offenses and, consistent with Mr. Faella’s

plea agreement, dismissed the felon-in-possession charge. Just before going into

recess, the court noted that Mr. Faella should be transported back to the court in order

to be physically present for the restitution hearing.

      At the first restitution hearing a few weeks later, the parties stated they had

not been able to come to an agreement regarding the restitution amount. After

hearing both sides’ positions, the court directed the parties to submit additional

arguments in writing to assist it in making its decision as to the proper restitution



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amount. The minutes for the first restitution hearing do not list Mr. Faella as being

present, but the transcript could be read as indicating that he attended. See D.E. 126

at 7:1–3 (court noting Mr. Faella is “not waiving his right to be here, and it’s perfectly

appropriate”); id. at 44:2–5 (“[D]oes your client want to be here for—well, no, we’re

just doing written submissions. There won’t be another hearing. So we won’t have

to meet again.”)

      A few weeks after the first restitution hearing, Mr. Faella’s counsel requested

oral argument regarding the applicability of our decision in United States v.

Rothenberg, 923 F.3d 1309 (11th Cir. 2019), to the government’s request for

restitution. The district court held a second restitution hearing to hear argument as

to the impact of Rothenberg and as to the restitution issue more broadly. Afterwards,

the court issued an order requiring Mr. Faella to pay $52,500 in restitution to a

number of victims. The court’s minutes for the second restitution hearing does not

conclusively indicate whether Mr. Faella was present, but defense counsel did not

make any objection or indicate Mr. Faella’s absence.

                                           II

      Both parties acknowledge the existence of the appeal waiver, but the

government presses the preclusive effect of the waiver on Mr. Faella’s appeal in its

response brief. Mr. Faella did not submit a reply brief to address the government’s

argument, or explain why his appeal waiver is invalid or how his arguments on



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appeal can survive it. If the appeal waiver in Mr. Faella’s plea agreement applies,

Mr. Faella would be barred from raising his claims and we would be required to

dismiss his appeal. See United States v. DiFalco, 837 F.3d 1207, 1215 (11th Cir.

2016) (citations omitted).

                                          A

      Mr. Faella’s first argument on appeal is that the district court abused its

discretion by failing to consider the factors set forth in Paroline in determining the

proper amount of restitution. This argument does not fall under any of the three

appeal waiver exceptions in the agreement. That claim is therefore permissible only

if we conclude that the appeal waiver is invalid or unenforceable.

      We review the validity of a sentence appeal waiver de novo. See United States

v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A waiver will be enforced if it

was made knowingly and voluntarily. See United States v. Bushert, 997 F.2d 1343,

1350–51 (11th Cir. 1993). To establish that the waiver was made knowingly and

voluntarily, the government must show either that (1) the district court specifically

discussed the waiver with the defendant at the plea colloquy, or that (2) the record

makes clear that the defendant otherwise understood the full significance of the

waiver. See id. at 1351. “[A]n examination of the text of the plea agreement,”

standing alone, is insufficient to find that the defendant made the appeal waiver

knowingly and voluntarily. Id. at 1352. “Without a manifestly clear indication in



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the record that the defendant otherwise understood the full significance of the

sentence appeal waiver, a lack of sufficient inquiry by the district court during the

[Fed. R. Crim. P.] 11 hearing will be error.” Id. Restitution is part of a sentence and

a challenge to a restitution amount can be waived by a valid appeal waiver. See

Johnson, 541 F.3d at 1067–68.

      According to his plea agreement, Mr. Faella expressly waived his right to

appeal on all but three narrow grounds. At his plea colloquy, he attested that he had

an opportunity to read the agreement with his attorney, and that he understood it.

The district court noted the appeal waiver among other provisions of the plea

agreement, and Mr. Faella confirmed the district court’s summary. Although this

was not as extensive and probing an inquiry as we would want, we have previously

determined that a waiver is enforceable in similar circumstances—where a defendant

professed to understand it during the plea colloquy, confirmed that he had read the

plea agreement and knew that it was binding, and entered into the plea agreement

freely and voluntarily. See United States v. Weaver, 275 F.3d 1320, 1323–24, 1333

(11th Cir. 2001) (holding that an appeal waiver was valid where it was “referenced”

at the Rule 11 hearing and where the district court established that the defendant had

read and understood “every page and every word” of the plea agreement).




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      Because the appeal waiver is valid, and because Mr. Faella’s Paroline

argument does not come within the waiver’s exceptions, we dismiss that portion of

the appeal.

                                            B

      We have recognized that “there are certain fundamental and immutable legal

landmarks within which the district court must operate regardless of the existence of

sentence appeal waivers.” Bushert, 997 F.2d at 1350 n.18. See also United States v.

Blick, 408 F.3d 162, 171–72 (4th Cir. 2005) (“[A] defendant’s agreement to waive

appellate review of his sentence is implicitly conditioned on the assumption that the

proceedings following entry of the plea will be conducted in accordance with

constitutional limitations.”) (citation omitted).

      Mr. Faella’s second argument—that the district court violated his due process

rights by conducting the restitution hearings without him—implicates these

concerns. The U.S. Constitution and the Federal Rules of Criminal Procedure

protect a defendant’s right to be present at his trial and sentencing. See Fed. R. Crim.

P. 43(a)(2)–(3) (requiring that “the defendant must be present at . . . every trial stage,”

including “sentencing”). See also United States v. Mosquera, 886 F.3d 1032, 1043

(11th Cir. 2018) (stating that a criminal defendant’s right to be present at trial is based

in the Confrontation Clause of the Sixth Amendment, the Due Process Clause of the

Fifth Amendment, and Federal Rule of Criminal Procedure 43); United States v.



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Huff, 512 F.2d 66, 71 (5th Cir. 1975) (“[S]entencing is, of course, a critical stage of

the proceedings against the accused, at which he is constitutionally entitled to be

present and represented by counsel.”). We assume, without deciding, that Mr.

Faella’s due process claim is not barred by the appeal waiver.

      We conclude, however, that Mr. Faella’s possible absence from the restitution

hearings did not constitute plain error. Plain error is the appropriate standard of

review because defense counsel did not object to Mr. Faella’s possible absence from

the two restitution hearings. See United States v. Margarita Garcia, 906 F.3d 1255,

1266–1268 (11th Cir. 2018).

      First, it is not clear from the record whether Mr. Faella was actually absent

from the proceedings. At the first restitution hearing, the court stated Mr. Faella was

“not waiving his right to be here.” D.E. 126 at 7:1–3. It then stopped itself before

asking whether Mr. Faella wanted to be present at a future hearing on restitution,

given that the parties were “just doing written submissions,” because there would

not be another hearing. See id. at 44:2–5. The court had, at the prior sentencing

hearing, recognized that Mr. Faella requested to be physically present for the

restitution hearing and that he should be transported back. See D.E. 122 at 42:2–8.

The minute entries for the hearings in the case generally do not indicate whether Mr.

Faella was present and the transcripts for these hearings do not list Mr. Faella as a

participant—even though we know from the transcripts that he was present, for



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example, at the sentencing hearing, where he spoke, and at a hearing on a motion to

reduce sentence, where the court reporter noted that Mr. Faella entered the

courtroom. See D.E. 122 at 10:10–11:7; D.E. 124 at 2:19. We cannot conclude on

this record that Mr. Faella was absent merely because he is not formally listed as

present in the transcripts or minute entries of the restitution hearings. 1

       Second, even if Mr. Faella was absent, his counsel—as noted—did not object

to his absence at the restitution hearings. Nor did counsel include a request that Mr.

Faella be present at the second restitution hearing when he moved for oral argument

regarding the effect of Rothenberg. Defense counsel therefore may have waived the

ability to challenge this purported error on appeal. See United States v. Brantley, 68

F.3d 1283, 1291 (11th Cir. 1995) (“Failure to assert the right to presence or to object

to a violation of Rule 43 may constitute a valid waiver.”). We therefore fail to see

how there was error that was plain.

       Third, we do not deem any error to have affected Mr. Faella’s substantial

rights. Assuming Mr. Faella was absent, and viewing the record as a whole—and

particularly the restitution hearing transcripts—his absence did not undermine his

ability to receive a fair and just hearing. See United States v. Gagnon, 470 U.S. 522,



1
 In recounting the facts of the case, Mr. Faella’s counsel does not assert that Mr. Faella was absent,
relying instead on the record’s silence as to his appearance at the restitution hearings. See Br. of
Appellant at 12–15; id. at 17 (“There is nothing in the record that affirmatively states that Mr.
Faella attended either of the two restitution hearings.”). Trial counsel for the government does not
recall whether he was present. See Br. of Appellee at 25 n.4.


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526 (1985) (per curiam) (“[T]he presence of a defendant is a condition of due process

to the extent that a fair and just hearing would be thwarted by his absence, and to

that extent only.”) (citation omitted; alteration in original). Mr. Faella’s presence

was not reasonably likely to change the outcome of the proceeding. At the first

restitution hearing, counsel ably advocated for Mr. Faella and argued against the

restitution amount pressed by the government, citing to legal authorities and the

specific factual details of Mr. Faella’s case. The second restitution hearing regarding

the effect of Rothenberg involved purely legal arguments, which defense counsel

handled with competence. Finally, the district court awarded less restitution than the

government sought. See D.E. 141 at 2–5. Any error did not affect Mr. Faella’s

substantial rights.

                                         III

      Mr. Faella’s Paroline argument is within the scope of his appeal waiver, and

we therefore dismiss it. Assuming that his due process claim is not barred by the

appeal waiver, Mr. Faella has not satisfied the plain error standard.

      DISMISSED IN PART AND AFFIRMED IN PART.




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