                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-4-2008

USA v. Perez
Precedential or Non-Precedential: Precedential

Docket No. 06-2036




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                                                PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      ___________

                          No. 06-2036
                          ___________

               UNITED STATES OF AMERICA


                                 v.


                   JUAN MANUEL PEREZ,

                                                Appellant.
                          ___________

         On Appeal from the United States District Court
                   for the District of New Jersey
                (D.C. Criminal No. 05-cr-00409)
          District Judge: Honorable William G. Bassler
                           ___________

          Submitted Under Third Circuit L.A.R. 34.1(a),
                      November 29, 2007

    Before: BARRY, FUENTES, Circuit Judges, and DIAMOND,*
                       District Judge.

                   (Filed: December 10, 2007)

George S. Leone
Christopher J. Kelly
Office of the United States Attorney
970 Broad Street


*
  Honorable Paul S. Diamond, District Judge for the United
States District Court for the Eastern District of Pennsylvania,
sitting by designation.
Room 700
Newark, NJ 07102
     Counsel for Appellee

Kevin F. Carlucci
Office of Federal Public Defender
972 Broad Street
Newark, NJ 07102
       Counsel for Appellant


                            OPINION


FUENTES, Circuit Judge.

        Juan Manuel Perez appeals the District Court’s final
judgment imposing, in part, restitution in the amount of $73,476.
He asserts that the waiver of appeal provision contained in his plea
agreement does not bar his challenge of the validity of the
restitution order. For the reasons that follow, we conclude that the
appellate waiver contained in Perez’s plea agreement applies to the
restitution order. Therefore, we will affirm the judgment of the
District Court.

                                 I.

       The restitution issue in this case stems from a bogus scheme,
whereby a stolen credit card machine was used to direct
unauthorized refunds to credit card accounts that the defendant
created for that purpose. Like other modern merchants, Levitz
Furniture Inc., (“Levitz”) used point-of-sale terminals to refund
money for returned merchandise that was purchased with a credit
card. In 2005, Levitz informed government officials that an
unauthorized individual electronically contacted Alliance Data
Systems, Inc. (“Alliance”), the company Levitz used to process
point-of-sale credit card transactions. That individual, defendant
Perez, used the stolen point-of-sale terminal to process and receive
“refunds” on personal credit cards that were unrelated to the return
of Levitz merchandise.


                                 2
       The telephone numbers Perez used to contact Alliance were
registered to his address in Elizabeth, New Jersey. Government
surveillance disclosed Perez made electronic purchases with the
credit cards that had received the fraudulent credits. Ultimately,
Perez was arrested and he confessed to his bogus scheme. Levitz
suffered approximately $73,476 in losses associated with these
fraudulent credits.

       After the federal investigation, a federal grand jury returned
an indictment against Perez charging him with one count of wire
fraud in violation of 18 U.S.C. § 1343 and one count of credit card
fraud in violation of 18 U.S.C. § 1029(a)(2). A few months later,
Perez entered into a plea agreement that included a waiver of his
right to appeal his sentence except in limited circumstances.
Specifically, the plea agreement provided:

       Juan Manuel Perez knows that he has and, except as
       noted below in this paragraph, voluntarily waives,
       the right to file any appeal, any collateral attack, or
       any other writ or motion, including but not limited to
       an appeal under 18 U.S.C. § 3742 or a motion under
       28 U.S.C. § 2255, which challenges the sentence
       imposed by the sentencing court if that sentence falls
       within or below the Guidelines range that results
       from the agreed total Guidelines offense level of 13.


(App. 42-43.) The plea agreement also stipulated that the offense
involved losses of at least $70,000 but not more than $120,000.

       At the sentencing hearing, Perez asserted that there were
credit balances on the credit cards he used that Levitz had not
attempted to retrieve and thus the loss amount was overstated. The
District Court said it would postpone sentencing if there was “an
issue of restitution,” so that an evidentiary hearing could be held.
(App. 10.) Rather than postponing sentencing for an evidentiary
hearing to determine Levitz’s outstanding loss, as suggested by the
District Court, Perez stipulated to the loss amount of $73,476. The
District Court sentenced Perez to a term of 41 months’
imprisonment followed by a term of three years of supervised
release. The District Court also ordered Perez to pay restitution in

                                 3
the amount of $73,476. Despite the fact that Perez waived his right
to appeal, he filed this appeal challenging the District Court’s order
of restitution.1

                                 II.

       On appeal, Perez argues that the waiver of appeal provision
does not bar his challenge to the restitution order, which he asserts
is not part of his “sentence.” Perez also argues that the factual
determinations underlying the restitution order were made by the
District Court on a preponderance of the evidence and that, under
United States v. Booker, 543 U.S. 220 (2005), those facts must be
determined by a jury.

       The government argues that the plea agreement waiver bars
Perez’s appeal of the District Court’s restitution order because this
Court held in United States v. Leahy, 438 F.3d 328 (3d Cir. 2006)
(en banc), that restitution is a component of a criminal sentence.
In addition, the government argues that, even if Perez did not waive
his right to appeal, Perez’s argument that the District Court’s
judicial fact-finding violated his Sixth Amendment rights is barred
by our decision in Leahy.

                                 III.

        The issue on appeal is limited. Perez does not contest that
he knowingly and voluntarily waived his right to appeal. He does
not assert that he misunderstood the waiver of appeal rights
contained in the plea agreement. The District Court engaged Perez
in a lengthy colloquy during his plea hearing and determined that
Perez’s “plea of guilty is a knowing and voluntary plea.” (App.
35.) Specifically, the District Court questioned Perez about the
appeal waiver and ascertained that Perez discussed the waiver with
his attorney, that he understood he was waiving his right to appeal


1
 We have appellate jurisdiction under 18 U.S.C. § 3742(a) and 28
U.S.C. § 1291. See United States v. Cooper, 437 F.3d 324, 327-28
(3d Cir. 2006). This Court retains subject matter jurisdiction over
an appeal by a defendant who has signed an appellate waiver. See
United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007).

                                  4
and that he did so knowingly and voluntarily.

        Rather, Perez argues that restitution is not, technically, a
component of his sentence, and therefore he is not precluded from
appealing the order of restitution. Perez asserts that the waiver he
agreed to only bars challenges to his conviction and duration of
confinement. We find this contention to be without merit. We
have previously stated that restitution, ordered as part of a criminal
sentence, is a criminal penalty. See Leahy, 438 F.3d at 333-35. It
is clear that, at the sentencing hearing, Perez understood that he
would be ordered to pay restitution. The government noted at the
hearing that the plea agreement included several stipulations.
Perez stipulated to a loss amount “of at least $70,000 but not more
than $120,000” in the plea agreement. (App. 42.) Lastly, the
government stated that “[t]he Plea Agreement to which Mr. Perez
has entered into also contains a waiver of appeal.” (App. 23.)
Following the government’s summary of the plea agreement, the
District Court asked Perez:

       Q:     Mr. Perez, did you hear the Assistant U.S.
              Attorney go over those? Did you hear her
              summarize the Plea Agreement?
       A:     Yes.
       Q:     And you understand the possible
              consequences of your plea?
       A:     Yes.

(App. 23.) The plea colloquy further included a lengthy discussion
specifically regarding the waiver of appellate rights contained in
the agreement.

        In imposing the sentence, the District Court ordered that
Perez pay restitution and set forth the restitution in the judgment.
We conclude that the appellate waiver, included in Perez’s plea
agreement, applies to the District Court’s restitution order, a
component of his sentence. See Leahy, 438 F.3d at 333. By
waiving his right to appeal his criminal sentence, Perez waived his
right to appeal the restitution order.

      Other courts have held that a defendant who knowingly and
voluntarily waives his right to appeal his sentence, has waived the

                                  5
right to appeal a restitution order. See, e.g., United States v.
Cooper, 498 F.3d 1156 (10th Cir. 2007) (dismissing appeal of
restitution order where defendant had signed an appeal waiver
because the plea agreement made clear that restitution award was
part of his sentence); United States v. Cohen, 459 F.3d 490, 497
(4th Cir. 2006) (“In sum, we conclude that, as a general rule, a
defendant who has agreed ‘[t]o waive knowingly and expressly all
rights, conferred by 18 U.S.C. § 3742, to appeal whatever sentence
is imposed,’ . . . has waived his right to appeal a restitution
order.”); United States v. Sharp, 442 F.3d 946, 948, 952 (6th Cir.
2006) (finding that defendant waived right to appeal restitution
order where defendant waived right “to appeal the conviction or
sentence in this case, including the appeal right conferred by 18
U.S.C. § 3742, and to challenge the conviction or sentence
collaterally,” but reserved right to appeal punishment in excess of
statutory maximum and upward departure from applicable
sentencing guidelines range).2

         Finally, we conclude that Perez’s Sixth Amendment
argument, that the District Court’s restitution order was
unconstitutional because of judicial fact-finding, is meritless. In
Leahy, we held that “restitution . . . is not the type of criminal
punishment that evokes Sixth Amendment protection under Booker
. . . [and] the amount a defendant must restore to his or her victim


2
  We note that other circuits have held that appellate waiver
provisions in a plea agreement do not include the waiver of the
right to appeal a restitution order. See United States v. Sistrunk,
432 F.3d 917, 918 (8th Cir. 2006) (finding restitution order was
beyond scope of waiver of appeal where provision provided that
defendant waived his rights to appeal if sentence was above
specific offense level); United States v. Zink, 107 F.3d 716, 718
(9th Cir. 1997) (plea agreement’s waiver of right to appeal any
sentence within statutory maximum which lacked any reference to
restitution only referred to sentences calculated under the
Sentencing Guidelines); United States v. Ready, 82 F.3d 551, 560
(2d Cir. 1996) (finding defendant did not waive right to appeal
restitution order where plea agreement contained ambiguity as to
whether term “sentence” included restitution penalty).


                                 6
need not be admitted by the defendant or proved to a jury beyond
a reasonable doubt.” 438 F.3d at 331.

      For the foregoing reasons, we will affirm the District
Court’s judgment.




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