     Case: 12-10551   Document: 00512648659    Page: 1   Date Filed: 06/02/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                No. 12-10551                            FILED
                                                                     June 2, 2014
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk

                                          Plaintiff-Appellee,
v.

RICKY J. KEELE,

                                          Defendant-Appellant.




                Appeal from the United States District Court
                     for the Northern District of Texas


Before STEWART, Chief Judge, and JOLLY and SMITH, Circuit Judges.
CARL E. STEWART, Chief Judge:
      IT IS ORDERED that the opinion previously filed in this case, United
States v. Keele, No. 12-10551, 742 F.3d 192 (5th Cir. Jan. 7, 2014), is
WITHDRAWN. The following opinion is substituted therefor:
      Defendant-Appellant Ricky J. Keele pled guilty to a superseding
information that charged him with removing property to prevent seizure and
aiding and abetting in violation of 18 U.S.C. §§ 2232(a) and 2. The district
court sentenced Keele and ordered restitution. Despite the general appeal
waiver provision contained in his plea agreement, Keele now challenges the
district court’s restitution order, arguing that it was not encompassed by his
appeal waiver. We dismiss.
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                                     No. 12-10551
                                        FACTS
      Keele was charged in a superseding bill of information with helping
Matthew Simpson dispose of, transfer and conceal a $1,500,000 cashier’s check
from Citizens Bank of Texas in order to prevent the funds from being seized by
the Government. Keele waived his right to an indictment and entered into a
written agreement to plead guilty to the superseding information. The plea
agreement set maximum sentencing exposure at 24 months and included
restitution to the victims arising from “all relevant conduct” and was not
limited to the conduct arising from the offense of conviction alone. The plea
agreement also contained an appeal waiver which stated that Keele waived the
right to appeal his conviction and sentence except in the case of a sentence in
excess of the statutory maximum, an involuntary plea or appeal waiver, or
ineffective assistance affecting the voluntariness of the plea or appeal waiver.
      The presentence report (“PSR”) described a long term, complex
conspiracy, perpetrated by Keele, Simpson, Michael Faulkner and sixteen
other co-defendants, to defraud telecommunication companies of property and
services and to defraud individual victims of money, property, and services.
Five victim impact statements referenced in Keele’s PSR contained losses
totaling $3,691,102.70. However, according to the second, third and fourth
superseding information, the aggregate loss of all victims of the conspiracy was
estimated to be between $15,000,000 and $20,000,000.
      The district court sentenced Keele to twenty-four months’ imprisonment
and ordered him to pay $3,691,102.70 in restitution to the victims under the
Mandatory Victim Restitution Act (“MVRA”). 1 Keele filed the instant appeal.




      1  The order specified that Keele would be held jointly and severally liable with the
other co-defendants for the total amount of restitution set forth in the order.

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                                    No. 12-10551
                                    DISCUSSION
A. Whether the Appeal Waiver Precludes Appeal of the Restitution
   Order
      Keele maintains that the appeal waiver in his plea agreement does not
encompass restitution.      Keele argues that the waiver did not specifically
mention restitution and further claims that the district court, in discussing the
appeal waiver at rearraignment, did not specify that he was waiving his right
to appeal any restitution order.        On this basis, Keele asserts that the
restitution order is reviewable despite the appeal waiver contained in his plea
agreement. We disagree.
      This court reviews de novo whether an appeal waiver bars an appeal.
United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002).
      To determine the validity of an appeal waiver, this court conducts “a two-
step inquiry.”   United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).
Specifically, this court considers whether the waiver was knowing and
voluntary and whether, under the plain language of the plea agreement, the
waiver applies to the circumstances at issue. Id. In determining whether a
waiver   applies,    this   court   employs   ordinary   principles   of   contract
interpretation, construing waivers narrowly and against the Government.
United States v. Palmer, 456 F.3d 484, 488 (5th Cir. 2006).
      A defendant may waive his right to appeal as part of a valid plea
agreement if the waiver is knowing and voluntary. United States v. McKinney,
406 F.3d 744, 746 (5th Cir. 2005). “A defendant must know that he had a right
to appeal his sentence and that he was giving up that right.” United States v.
Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (internal quotation marks and citation
omitted). A waiver is both knowing and voluntary if the defendant indicates
that he read and understood the agreement and the agreement contains an


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                                  No. 12-10551
“explicit, unambiguous waiver of appeal.” McKinney, 406 F.3d at 746. District
courts must ascertain that defendants understand provisions in plea
agreements waiving the right to appeal. Fed. R. Crim. P. 11(b)(1)(N).
      The written appeal waiver in Keele’s plea agreement stated that he
waived the right to appeal his conviction and sentence on direct appeal or on
collateral review except in the case of a sentence in excess of the statutory
maximum, an involuntary plea or appeal waiver, or ineffective assistance
affecting the voluntariness of the plea or appeal waiver. Keele also signed a
written provision at the end of the agreement affirming that he fully
understood the plea agreement and entered into it knowingly and voluntarily.
At rearraignment, the district court asked Keele whether he understood the
plea agreement and the appeal waiver provision, and Keele answered
affirmatively.   Keele stated that his plea was voluntary and that he had
voluntarily waived his right to appeal. Thus, we conclude that Keele’s appeal
waiver was knowing and voluntary. See McKinney, 406 F.3d at 746.
      Whether a general appeal waiver bars a challenge to a restitution order
is unsettled in this circuit, and other circuits have reached differing results, at
least where restitution was not mentioned in the plea agreement. See Smith,
528 F.3d at 424-25 (declining to reach issue and comparing cases from other
circuits); United States v. Lam, 233 F.3d 575, at *1 & n.2 (5th Cir. 2000) (per
curiam) (unpublished).      In Smith, the defendant appealed an order of
restitution on the basis that it was not supported by sufficient evidence. Smith,
528 F.3d at 423-24. The Government asserted that the defendant’s challenge
was barred by her appeal waiver. Id. at 424. This court noted that restitution
is ordinarily considered a component of a sentence and that, in two
unpublished opinions, the court had held that a general appeal waiver barred
review of a restitution order. Id. at 424-25 (citing United States v. Hemler, 169


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                                  No. 12-10551
F. App’x 897, 898 (5th Cir. 2006); United States v. Glynn, 149 F. App’x 322, 323
(5th Cir. 2005)). However, in those prior cases, the plea agreements expressly
stated that the defendant had agreed to pay restitution as determined by the
district court. See Smith, 528 F.3d at 424. In Smith, by contrast, the plea
agreement was silent regarding restitution, and the Rule 11 colloquy did not
resolve whether restitution was part of the agreement. Id. However, because
the appeal could easily be resolved on the merits, the Smith court declined to
address “whether a general appeal waiver bars review of a restitution order
when the plea agreement does not discuss restitution.” Id.
      In Lam, this court held that an appeal waiver did not bar a challenge to
restitution. Lam, 233 F.3d 575, at *1. There, the plea agreement stated that
the defendant agreed to pay restitution and agreed to waive his right to appeal
his sentence except for an upward departure. Id. However, the waiver did not
mention restitution, the defendant was not admonished regarding the
provisions of the MRVA, and the Government conceded that restitution was
not contemplated as being included in the waiver. Id.
      Keele’s case, however, is distinguishable from Lam.         In addition to
restitution’s being mentioned in Keele’s plea agreement, the district court also
informed Keele multiple times at sentencing and rearraignment that his
sentence “includes restitution” arising from all “relevant conduct” and would
not be limited to that arising from the offense of conviction. The district court
admonished Keele that he “will be required to make full restitution . . . because
restitution is by statute mandatory in this case.” Moreover, Keele stated at
sentencing, “[t]he restitution, I know you have the right to do that. You have
said that. The only thing I ask you to consider is that at 58 years old it will be
a burden that I cannot accomplish, and I know that. I ask you to think about
that before you sentence me.” Keele also agreed that he understood that he


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                                       No. 12-10551
was waiving his right to appeal his conviction and sentence with certain
limited exceptions.
       The written plea agreement also stated that restitution was mandatory
under the law and that the extent of restitution ordered by the court may
include “restitution arising from all relevant conduct, not limited to that
arising from the offense of conviction alone[.]” Additionally, Keele’s factual
resume contains fourteen paragraphs of “relevant conduct,” which Keele
admitted to be true, that exceeded the scope of the 18 U.S.C. § 2232(a) offense
of which he was convicted. 2 Further, as the Government points out, Keele
expressly waived his right to appeal his “sentence” or “seek any future
reduction in his sentence” in his plea agreement. That same plea agreement
defines “sentence” to include mandatory “restitution to victims.” Because the
whole of this factual scenario greatly differs from that which took place in Lam,
the two cases are clearly distinguishable.
       We therefore conclude after reviewing the whole of the record –
specifically, the plea agreement and the appeal waiver, the PSR, the district
court’s statements to Keele at sentencing and rearraignment, and Keele’s
statements at sentencing – that Keele’s valid appeal waiver did in fact bar his
right to appeal the restitution order.             Additionally, we note that, while
defendant has made no such argument on appeal herein, an ‘in excess of the
statutory maximum’ challenge, if properly raised on appeal, would not be
barred by an appeal waiver. See United States v. Chem. & Metal Indus., Inc.




       2  This court has previously held that where the defendant’s “plea agreement
contemplated a scheme that went beyond the [defendant’s crimes] alleged in the indictment”
we will interpret the conviction as part of the broader scheme and uphold the district court’s
award of restitution to all of the victims under the broader scheme. United States v. Cothran,
302 F.3d 279, 290 (5th Cir. 2002).

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                                  No. 12-10551
(C& MI), 677 F.3d 750, 752 (5th Cir. 2012). Accordingly, Keele’s appeal of the
restitution order is dismissed.
B. Whether the Restitution Order Violates Keele’s Eighth Amendment
   Rights
      Keele argues that the amount of restitution ordered by the district court
was disproportionate to his role in the offense and, therefore, his Eighth
Amendment rights were violated. For the reasons stated herein, we hold that
Keele’s Eighth Amendment claims are also waived.
      The right to appeal is statutory, not constitutional. United States v.
Melancon, 972 F.2d 566, 567 (5th Cir. 1992) (citations omitted). Generally,
constitutional rights can be waived as part of a plea agreement. Id. (citation
omitted).   “[I]t is well settled that plea bargaining does not violate the
Constitution even though a guilty plea waives important constitutional rights.”
Town of Newton v. Rumery, 480 U.S. 386, 393 (1987) (citations omitted).
      This court noted in United States v. Walton, --- F. App’x ---, 2013 WL
3855550, at *6 (5th Cir. 2013) (per curiam) (unpublished), that “[w]hether an
appeal waiver may bar a prisoner from arguing on direct appeal that . . . his
sentence exceeds Eighth Amendment limitations appears to be an open
question in this circuit. . . [.] Assuming arguendo that the appeal waiver does
not bar us from considering [the defendant’s] Eighth Amendment arguments,
those arguments, unpreserved before the sentencing court, fail under plain
error review.” (citations omitted). In United States v. Lytle, 90 F. App’x 453,
454 (5th Cir. 2004) (per curiam) (unpublished), however, this court held that
the waiver-of-appeal provision in the defendant’s signed, written plea
agreement barred the defendant from raising his Eighth Amendment claims
on appeal. Here, because the appeal waiver in Keele’s signed, written plea
agreement waived his right to appeal his sentence with only three specific


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                                     No. 12-10551
exceptions, 3 none of which apply here, we conclude that his Eighth Amendment
claims are also waived. See id.
                                   CONCLUSION
       In light of the foregoing, the appeal of Defendant Ricky J. Keele is
DISMISSED.




       3 A sentence in excess of the statutory maximum, an involuntary plea or appeal
waiver, or ineffective assistance affecting the voluntariness of the plea or appeal waiver.

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