                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-5055


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MICHAL ZAKRZEWSKI, a/k/a White Mike,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:07-cr-00166-FDW-1)


Argued:   October 28, 2011                 Decided:   February 2, 2012


Before WILKINSON, KING, and DIAZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
opinion. Judge Diaz wrote the opinion, in which Judge Wilkinson
and Judge King joined.


ARGUED: David O. Schles, LAW OFFICE OF DAVID SCHLES, Charleston,
West Virginia, for Appellant.      Michael Alan Rotker, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Lanny A. Breuer, Assistant Attorney General, Greg D.
Andres, Acting Deputy Assistant Attorney General, Ellen R.
Meltzer, Patrick M. Donley, Peter B. Loewenberg, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
DIAZ, Circuit Judge:

     Michal Zakrzewski pleaded guilty to offenses stemming from

his participation in a fraudulent telemarketing conspiracy.                        On

appeal,    Zakrzewski    challenges      his    sentence,      which   includes     a

restitution order.       The government seeks to enforce Zakrzewski’s

appeal waiver, maintaining that his appeal should be dismissed.

Zakrzewski, however, contends that the appeal waiver cannot be

enforced    because     the   government       breached      its   agreement   with

Zakrzewski by improperly using statements he made during his

proffer session to resist his request for a downward variance at

sentencing.

     We decline to resolve whether the government breached its

agreement   with   Zakrzewski     and,     if    so,   the    impact   of   such    a

breach on Zakrzewski's appeal waiver.              Because Zakrzewski failed

to object to the use of his proffered statements at sentencing

or to the amount of the restitution order, we review each issue

for plain error.        Applying that exacting standard, we find no

merit to Zakrzewski’s claim for relief based on the proffered

statements.    As to the restitution order, the amount imposed by

the district court exceeds the statutory limit, which provides

an independent ground for excusing Zakrzewski's appeal waiver.

Reaching the merits of that claim, we find plain error and,

accordingly, vacate the restitution order and remand.



                                      2
                                     I.

                                     A.

     In April 2002, Zakrzewski traveled to San Jose, Costa Rica

to   work   in   a   call   center   operated    by   Guisseppe   Pileggi.

Zakrzewski and Pileggi first met in Canada in 2000, where their

telemarketing scheme began in 2001.          In 2002, Pileggi relocated

to Costa Rica to open one of several fraudulent call centers

targeting United States citizens.          The call centers all utilized

the same basic scheme.        An “opener” would call “leads” in the

United States, telling their potential victims that they had won

second prize in a sweepstakes.            To mask the foreign origin of

the calls, the call centers employed a technology that made it

appear as if the calls originated in Washington, D.C.             As part

of the scheme, the “opener” falsely indicated that he or she was

employed by a federal agency that regulated sweepstakes.              The

“opener” told the victim that to claim the prize money, the

victim must pay a refundable “insurance fee”—typically several

thousands of dollars—to “Lloyd’s of London of Costa Rica.”            The

“insurance fee” was to be wired via Western Union. 1               If the


     1
       As a continuing offense under 18 U.S.C. § 3237(a), wire
fraud may be prosecuted in “any district where a payment-related
wire   communication   was   transmitted   in   furtherance   of
[Zakrzewski’s] fraud scheme.”    United States v. Ebersole, 411
F.3d 517, 527 (4th Cir. 2005) (citing United States v. Kim, 246
F.3d 186, 192 (2d Cir. 2001), cited with approval in United
States v. Stewart, 256 F.3d 231, 243 (4th Cir. 2001)).       The
(Continued)
                                     3
victim fell for the scam and wired the initial “insurance fee,”

a “loader” would call again, this time telling the victim that

he or she had actually won first prize in the sweepstakes and

needed to wire more money to receive the larger prize.                         If the

victim     acquiesced     in     wiring    more     money,      the   victim    would

continue to be “loaded” and “reloaded.”                 No victim ever received

any prize money.

     After    arriving     in    Costa     Rica    in   2002,    Zakrzewski     first

worked as an “opener” in Pileggi’s call center, but in 2003

Zakrzewski became a “room boss.”                  In this position, Zakrzewski

was tasked with scheduling the calls, providing lists of leads,

collecting       the   results    of     the   calls,    and     delivering     these

results to his supervisors.               After a falling out with Pileggi,

Zakrzewski left Pileggi’s employ to join another call center

operated    by    Al   Duncan.      In     early    2005,    however,    Zakrzewski

returned to Pileggi’s center.              In December 2005, Zakrzewski left

the call center and opened a scooter rental business in Puerto

Viejo, Costa Rica.



Western Union wire transfers were electronically routed and
processed through Charlotte, North Carolina (within the Western
District of North Carolina), before being sent to their final
destinations.   See United States v. Llamas, 599 F.3d 381, 385
n.3 (4th Cir. 2010) (noting, in a case involving another call
center defendant, that venue was proper in the Western District
of North Carolina because the wire transfers were routed through
that district).



                                           4
                                          B.

     Zakrzewski’s departure was timely because months later, on

May 16, 2006, Costa Rican and U.S. authorities raided more than

fifteen Costa Rican call centers.                  The raids resulted in the

arrest   of   many      persons      involved    in    the     call       centers, 2    but

Zakrzewski,      now    living    in    Puerto     Viejo,      was       not    arrested.

Ultimately,    on      April   27,     2007,    Zakrzewski         was    charged      in   a

sealed complaint in the Western District of North Carolina with

conspiracy to defraud via a telemarketing scheme, in violation

of 18 U.S.C. §§ 371, 1343, and 2326.                  Zakrzewski was arrested in

Costa Rica on June 25, 2007.               Subsequently, he was named in a

twenty-three     count    indictment      filed       on    July    25,    2007    in   the

Western District of North Carolina, charging him in Count 1 with

conspiracy to defraud, in violation of 18 U.S.C. §§ 371, 1343,

1341, 2314, and 2326(2)(A)-(B); and in Counts 2-23 with wire

fraud, and aiding and abetting the same, in violation of 18

U.S.C. §§ 2, 1343, and 2326(2)(A)-(B).

     For   reasons       not   clear     from    the       record,       Zakrzewski     was

detained   for    a     substantial      time    by    Costa       Rican       authorities

     2
       The district court that presided over Zakrzewski’s case
also presided over the proceedings against many of these call
center defendants. Because there were multiple Costa Rican call
center conspiracies, we refer generally to the “call center
defendants.” We note, however, for purposes of remand, that it
appears that Zakrzewski was part of the Pileggi and Duncan
conspiracies.



                                          5
before    he   was    extradited   to    the   United   States,    making   his

initial appearance in the Western District of North Carolina on

May 1, 2009.         Shortly after his initial appearance, Zakrzewski

signed a proffer agreement with the government. 3                 The proffer

agreement provided that Zakrzewski would meet with the Fraud

Section of the Department of Justice “to determine whether [he

could] provide reliable cooperation.”             J.A. 20.        Although the

agreement generally protected statements Zakrzewski made during

his proffer session from use at trial or sentencing, it also

provided that Zakrzewski’s statements “may” be used to “rebut

any evidence offered by or on [his] behalf in connection with

the trial and/or sentencing.”           Id.



     3
         We have explained that

     A “proffer agreement” is generally understood to be an
     agreement between a defendant and the government in a
     criminal case that sets forth the terms under which
     the   defendant  will   provide   information  to  the
     government during an interview, commonly referred to
     as a “proffer session.” The proffer agreement defines
     the obligations of the parties and is intended to
     protect the defendant against the use of his or her
     statements, particularly in those situations in which
     the defendant has revealed incriminating information
     and the proffer session does not mature into a plea
     agreement or other form of cooperation agreement.

United States v. Lopez, 219 F.3d 343, 345 n.1 (4th Cir. 2000)
(citing Harry I. Subin et al., Federal Criminal Practice § 10.5
(1992)).




                                         6
      During      his    proffer      session,       Zakrzewski       made    several

admissions relevant to this appeal, including that (1) he was

aware of the May 2006 raids, resulting in the arrest of many

call center defendants, (2) he had checked the website for the

Western District of North Carolina to determine if he had been

charged,    and   (3)    he    took   $40,000    in    proceeds      from    the    call

center when he left in December 2005 to open his scooter rental

business.

      Following his proffer session, Zakrzewski signed a written

plea agreement with the government, agreeing to plead guilty to

Counts 1 and 8.          The plea agreement included an appeal waiver,

barring     Zakrzewski       from   appealing    his    conviction      or    sentence

“within the maximum provided by the statute of conviction except

for   (1)   claims      of    ineffective     assistance       of   counsel    or   (2)

prosecutorial      misconduct.”         Id.     at    45–46.        Zakrzewski      also

agreed to make full restitution for his offense conduct, with

the parties further agreeing that $10 million was a suitable

restitution figure.

                                         C.

      On August 12, 2009, Zakrzewski entered a plea of guilty to

Counts 1 and 8.          During the plea hearing, the magistrate judge

confirmed that Zakrzewski understood the terms of his appeal

waiver, and the government noted that by the terms of the plea

agreement, Zakrzewski agreed to pay $10 million in restitution.

                                         7
     Prior      to      sentencing,        Zakrzewski       filed     a    sentencing

memorandum,     requesting        that    the    district    court    vary      downward

from the Guidelines range to impose a sentence of 70 months’

imprisonment.        At the sentencing hearing, Zakrzewski reiterated

the arguments advanced in his sentencing memorandum, emphasizing

in   relevant        part    that    he    voluntarily       withdrew          from   the

conspiracy, and that because he was “late to th[e] prosecution

. . . due to circumstances beyond his control,” the value of his

cooperation was diminished.              J.A. 57–58.       In support, Zakrzewski

noted   that    although      a   motion    under      Federal   Rule     of    Criminal

Procedure 35 remained a possibility, despite his cooperation,

the government had not filed a motion for substantial assistance

under United States Sentencing Guidelines § 5K1.1 because there

were no pending prosecutions of call center defendants.

     In   opposing          Zakrzewski’s        request    for   a   variance,        the

government      first       observed      that    in    “withdrawing”          from   the

conspiracy, Zakrzewski took $40,000 from the victims of the call

center.        Second,      the   government      argued    that     Zakrzewski       was

responsible for the fact that he was late to the prosecution,

noting that although he was aware of the raids on the call

centers, he did not turn himself in, and that Zakrzewski had

checked the court’s website to see if he had been charged.                             In

so arguing, the government utilized Zakrzewski’s statements from

his proffer session.          Zakrzewski, however, made no objection.

                                            8
     In    sentencing         Zakrzewski,       the     district       court   began    by

noting    an     advisory      Guidelines       range    of     135    to   168   months.

Looking to the sentencing factors in 18 U.S.C. § 3553(a), the

court found that a slight downward variance was appropriate to

account for the time Zakrzewski spent in Costa Rican custody.

Declining      to    impose    a   more   robust      variance,       the    court   first

noted     that      Zakrzewski      was   part     of    “a     very     complex,      very

sophisticated conspiracy” that targeted vulnerable persons.                             Id.

at 92.      Second, the court observed that prior to leaving the

conspiracy, Zakrzewski occupied a position of leadership at the

call center and that he “didn’t truly legally walk away from the

scheme, [he] actually left the scheme with $40,000 in criminal

proceeds.”          Id. at 94.       Third, the court found that although

Zakrzewski did not personally pose a future threat, it believed

there was a general need to deter organized foreign criminal

conduct targeting U.S. citizens.

     After       considering       the    statutory      sentencing         factors,   the

district court sentenced Zakrzewski to 126 months’ imprisonment,

followed by three years of supervised release.                              The district

court     also       ordered       Zakrzewski      to     pay     $4.2       million     in

restitution, noting that although Zakrzewski agreed to pay $10

million, $4.2 million was the more appropriate figure based on

the dollar value of the claims filed in cases involving other

call center defendants.

                                            9
        Zakrzewski’s attorney did not file a notice of appeal, but

subsequent to Zakrzewski’s successful petition for relief under

28    U.S.C.     §    2255,     the    court     entered       an   amended    judgment,

enabling Zakrzewski to timely appeal.



                                            II.

        On    appeal,    Zakrzewski        challenges         his   sentence    as     both

procedurally and substantively unreasonable.                         Specifically, he

contends that the district court committed procedural error by

considering evidence not properly before the court—his proffered

statements, and imposed a substantively unreasonable sentence.

Zakrzewski also argues that the restitution order is erroneous

because it is not limited to the losses caused by his criminal

conduct.

      The government counters that Zakrzewski’s appeal should be

dismissed because the issues raised fall within the scope of the

valid        appeal     waiver        contained     in        his    plea     agreement.

Zakrzewski,          however,    contends      that      in    using   his     proffered

statements at sentencing, the government breached the terms of

the   proffer        agreement   and     committed     prosecutorial         misconduct,

thus piercing the veil of his appeal waiver.

      We      need     not    decide     whether      the      government’s     use     of

Zakrzewski’s proffered statements was a breach of the agreement

or    prosecutorial          misconduct.         Because      Zakrzewski      failed    to

                                            10
object to the use of his statements at sentencing, we review

only for plain error, and find none.

      Zakrzewski’s challenge to the restitution order presents a

separate issue.           Our cases provide that a defendant may not

waive his right to appeal a sentence in excess of the statutory

maximum, an exception also found in the parties’ plea agreement.

Because the amount of restitution imposed by the district court

exceeds     the    statutory   maximum,        the   appeal    waiver      does   not

foreclose our consideration of this issue.                 Reaching the merits,

we   find   that    the    district     court    plainly      erred   in    ordering

Zakrzewski to pay $4.2 million in restitution.                   Accordingly, we

vacate the restitution order and remand for further proceedings.



                                        III.

      “The threshold issue we must consider is whether the appeal

waiver . . . precludes [Zakrzewski] from presenting these issues

on appeal.”        United States v. Cohen, 459 F.3d 490, 493-94 (4th

Cir. 2006) (citation and alterations omitted).                    We will uphold

an appeal waiver if it is valid and if the issue raised on

appeal falls within the scope of the waiver.                 Id. at 494.

      Our broad enforcement of appeal waivers, however, is not

without     exception.         First,     we    will    of     course      recognize

exceptions to an appeal waiver agreed to by the parties.                           In

this case, the parties agreed that Zakrzewski retained his right

                                         11
to appeal a sentence outside the statutory maximum, as well as

ineffective assistance of counsel and prosecutorial misconduct

claims. 4        Second, we will allow an appeal to proceed where the

government has breached the very agreement on which it seeks to

rely       in   enforcing      the    appeal       waiver.     See    United    States   v.

Dawson, 587 F.3d 640, 644 n.4 (4th Cir. 2009) (“A defendant’s

waiver of appellate rights cannot foreclose an argument that the

government breached its obligations under the plea agreement.”)

(citing         Cohen,   459    F.3d    at    495);    see   also     United    States   v.

Blick, 408 F.3d 162, 168 & n.5 (4th Cir. 2005).

       It       is   within    this    framework      that   we   consider,      in   turn,

Zakrzewski’s          challenge       to     his    sentence    and    the     restitution

order.




       4
       The exceptions in Zakrzewski’s appeal waiver are familiar
ones.   See, e.g., United States v. Dawson, 587 F.3d 640, 643
(4th Cir. 2009) (noting that the defendant “waived the right ‘to
contest the . . . sentence’ except for claims of ‘ineffective
assistance of counsel,’ or ‘prosecutorial misconduct’ ”); Cohen,
459 F.3d at 493 (noting that the appeal waiver included “all
rights to contest the conviction or sentence in any post-
conviction proceeding, including one pursuant to 28 U.S.C. §
2255, excepting an appeal or motion based upon grounds of
ineffective assistance of counsel or prosecutorial misconduct”).




                                               12
                                          IV.

                                          A.

     First, we consider Zakrzewski’s claims that the district

court    committed      both    procedural      and    substantive       error    with

respect to his prison sentence.                 The government contends that

these claims should be summarily dismissed based on Zakrzewski’s

appeal waiver.

     To begin with, we have little difficulty in affirming the

validity of Zakrzewski’s appellate waiver.                 See United States v.

Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995) (upholding a

waiver   as    valid    where   it    was   “the      result   of   a   knowing    and

intelligent decision to forgo the right to appeal”) (citation

omitted).      Zakrzewski pleaded guilty pursuant to a valid Rule 11

colloquy, wherein the magistrate judge specifically questioned

Zakrzewski about the appeal waiver.                   See id. (looking to the

specifics of the Rule 11 colloquy in finding the waiver valid,

even where “the district court did not question [the defendant]

specifically about the waiver provision itself” (citing United

States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992)).

     And despite Zakrzewski’s assertion that the appeal waiver

is “so lacking in mutuality and fairness” as to be facially

invalid,      Reply    Br.   18,     he   concedes     that    such     waivers   are

routinely enforced.          See, e.g., United States v. Poindexter, 492

F.3d 263, 270 (4th Cir. 2007) (noting that “[a]ppeal waivers

                                          13
also play an important role in the plea bargaining process” and

are “enforce[d] . . . so long as the waiver is knowing and

intelligent and the issue sought to be appealed falls within the

scope of the appeal waiver” (citing Blick, 408 F.3d at 168)).

Moreover, we note that Zakrzewski received certain benefits from

his   plea   agreement—namely,          the    government        agreed    to    dismiss

twenty-one        counts    in   the    indictment         and   to    recommend     that

Zakrzewski receive the full three-point reduction for acceptance

of responsibility at sentencing.                 Thus, we decline Zakrzewski’s

invitation to reject the appeal waiver on its face.

      We   also     find    that   Zakrzewski’s           complaints    regarding     his

prison sentence fall within the scope of his appeal waiver.                          The

appeal     waiver    bars    Zakrzewski       from    challenging       “any    sentence

within the maximum provided by the statute,” J.A. 45–46, and

here there is no suggestion that the district court imposed a

sentence     of     imprisonment       outside       of    the   statutory      maximum.

Thus, absent an exception to our general enforcement of appeal

waivers, Zakrzewski’s claims regarding his prison sentence are

barred.

                                          B.

      Zakrzewski      maintains        that    the    government’s        use   of   his

proffered statements at sentencing triggers such an exception.

He claims that in using his statements to rebut his request for

a   downward      variance,      the    government         committed     prosecutorial

                                          14
misconduct and breached the agreement.                       Accordingly, he argues

that his appeal either falls within an express exception to his

appeal waiver or that the government is barred from enforcing an

appeal waiver found in an agreement that it breached. 5

     The government responds that there was no breach, as the

statements were used to rebut evidence offered by Zakrzewski at

sentencing, and thus their use was expressly contemplated by the

terms of the proffer.          To this, Zakrzewski replies first that no

“evidence”—only argument by counsel—was offered at sentencing.

He   further      contends           that        the     argument      was     not     a

misrepresentation—only          an    advocate’s        characterization       of    the

facts—and thus there was nothing to rebut.

     We   need    not        decide    whether         the     government’s    use    of

Zakrzewski’s     proffered      statements         excuses      Zakrzewski's    appeal

waiver.    Waiver       or    not,    Zakrzewski         did    not   object   in    the

district court to the use of the challenged statements, and thus

we review their effect on the sentencing proceedings for plain

error.




     5
       The government notes that Zakrzewski is attempting to rely
on a breach of the proffer agreement to circumvent the appeal
waiver contained in his plea agreement. Whether the government
may breach one agreement with a defendant while seeking to
enforce another is a question we need not decide based on our
conclusion that Zakrzewski cannot meet the rigorous demands of
plain error review.



                                            15
      To warrant relief for plain error, Zakrzewski bears the

burden of showing “(1) an error, (2) that is plain, (3) that

affects [his] substantial rights, and (4) that seriously affects

the   fairness,     integrity,   or     public    reputation      of    judicial

proceedings.”       Dawson, 587 F.3d at 645.            An appellate court

enjoys discretion in determining whether to notice the error.

See United States v. Olano, 507 U.S. 725, 732 (1993).                  As to the

third prong of this test, Zakrzewski must satisfy us that the

alleged   error    “ ‘affected   the    outcome   of    the    district    court

proceedings[,]’ ” which, in the sentencing context, requires a

showing of a “ ‘reasonable probability, based on the appellate

record as a whole, that but for the error he would have received

a more favorable sentence.’ ”          Dawson, 587 F.3d at 645 (quoting

Puckett v. United States, 129 S.Ct. 1423, 1429 (2009); United

States v. Lovelace, 565 F.3d 1080, 1088 (8th Cir. 2009)).

      Zakrzewski cannot meet his burden here.                He complains that

the government erred in using his proffered statements that he

took $40,000 when he left the call center, knew of the raids on

the call center, and had monitored the court’s website to see if

he had been charged.       The district court, however, referred to

only one of these statements before announcing its sentence,

noting    that    Zakrzewski   “withdrew”    from      the    conspiracy    with

$40,000 in criminal proceeds in tow.              Moreover, this fact was

included without objection in the presentence report prepared by

                                       16
the probation office prior to Zakrzewski’s sentencing.                   In any

event, this isolated reference did not play a meaningful role in

the district court's lengthy sentencing explanation, wherein it

made a persuasive case for its chosen sentence based largely on

factors unrelated to the information disclosed in Zakrzewski’s

proffer.    For example, the court noted that Zakrzewski was part

of a complex conspiracy, that he played a leadership role in

that conspiracy, and that a significant sentence was warranted

to generally deter similar conduct.                After determining that a

slight     downward    variance      was     appropriate    to    account     for

Zakrzewski's extended detention at the hands of the Costa Rican

authorities,    the    district      court    imposed   a   sentence     of   126

months’ imprisonment on each count, to be served concurrently.

     On this record, Zakrzewski cannot meet the “rigorous plain

error    standard”    of   showing   that    the   government’s    use   of   his

proffered statements affected his substantial rights.                    Dawson,

587 F.3d at 648.           Accordingly, we affirm the district court’s

prison sentence. 6



     6
       While Zakrzewski’s claim of procedural error was not
raised below, and thus is subject only to plain error review, we
note that our decision in United States v. Hargrove, 625 F.3d
170 (4th Cir. 2010) suggests that his claim of substantive
unreasonableness is reviewed for abuse of discretion.    See id.
at 183 (“Several circuit courts of appeal have held that
appellate courts review the substantive reasonableness of a
sentence for abuse of discretion regardless of whether the
(Continued)
                                       17
                                         V.

     Next,      we    consider    Zakrzewski’s       claim   that   the   district

court   erred    in    ordering    restitution.       Because   the   restitution

order is part of the district court’s sentence, the government

maintains that this claim, too, must be dismissed based on the

appeal waiver.        We disagree.

     We   have       recognized   that   even    a    defendant     who   signs   an

appeal waiver can “not be said to have waived his right to

appellate review of a sentence imposed in excess of the maximum

penalty provided by statute.”            United States v. Marin, 961 F.2d

493, 496 (4th Cir. 1992) (emphasis added).                   And because federal

courts lack “the inherent authority to order restitution, but

must rely on a statutory source,” we have also held that “a

restitution order that exceeds the authority of the statutory

source ‘is no less ‘illegal’ than a sentence of imprisonment

that exceeds the statutory maximum.’ ” Cohen, 459 F.3d at 498

(quoting Broughton-Jones, 71 F.3d at 1147).                     Accordingly, if

Zakrzewski’s restitution order exceeds the statutory maximum, a

challenge to it is not barred by his appeal waiver.

     The Mandatory Victims Restitution Act of 1996 (the “MVRA”)

controls here and provides in relevant part that in sentencing a



parties noted an objection below.”).        Having reviewed the
sentencing transcript at length, we find no abuse of discretion.



                                         18
defendant convicted of certain offenses, the court “shall order

. . . that the defendant make restitution to the victim of the

offense.”   18 U.S.C. § 3663A(a)(1).    The MVRA’s focus on the

offense of conviction, as opposed to relevant conduct, requires

that the restitution order be limited to the “losses to the

victim caused by the offense.”    United v. Llamas, 599 F.3d 381,

390–91 (4th Cir. 2010) (citation omitted) (concluding that “in

the context of a conspiracy, a restitution award under the MVRA

is limited to the losses attributable to the specific conspiracy

offenses for which the defendant was convicted”).    In addition,

under 18 U.S.C. § 3663A(a)(3), “[t]he court shall also order, if

agreed to by the parties in a plea agreement, restitution to

persons other than the victim of the offense.”

     In cases involving two other call center defendants, we

determined the restitution order in question to be illegal under

18 U.S.C. § 3663A(a)(1).   See Llamas, 599 F.3d at 390-91 (noting

that “[b]ecause the [$4.2 million] restitution order was not

limited to losses attributable to the Center . . . [but held the

defendant] jointly and severally liable for losses caused . . .

by other Costa Rican call centers utilizing similar sweepstakes

schemes” the district court committed “legal error,” as conceded

by the government); United States v. Susi, 378 F. App’x 277, 288

(4th Cir. 2010) (per curiam) (“Like Llamas, Susi was . . .

convicted of participating in a conspiracy involving only one

                                 19
call center, and not of a conspiracy involving all sixteen Costa

Rican call centers.            Thus the restitution order . . . should

also have been ‘limited to the losses attributable’ to [Susi’s]

call       center    conspiracy.”).          As   a   result,    we   vacated    the

restitution orders in both cases and remanded for resentencing. 7

       This case is admittedly different from Llamas and Susi,

because here the parties agreed that Zakrzewski would make “full

restitution,” that restitution would include Zakrzewski’s “total

offense       conduct,     .   .   .   not    limited    to     the   count(s)    of

conviction,” and that the amount to be recommended to the court

would be $10 million.              J.A. 42.       In our view, however, these

stipulations by the parties do not warrant a different result.

       First,       in   setting    Zakrzewski’s      restitution      order,    the

district court was not operating under the parties’ agreement;

rather, the court simply imposed the same amount of restitution

it had ordered in the related cases based on the government’s

representation that $4.2 million was the proper figure.                          We,

however, have twice vacated this award in other cases.                          Thus,


       7
      The government argues that under United States v. Johnson,
410 F.3d 137 (4th Cir. 2005), Zakrzewski may not benefit from
the subsequent change in law regarding the restitution order.
In Johnson the defendant sought to obtain the benefit of United
States v. Booker, 543 U.S. 220 (2005).     Johnson, 410 F.3d at
149.   Here, however, unlike Johnson, there was no subsequent
change in law that rendered the district court’s restitution
order illegal; rather, the orders were always illegal under the
MVRA. Johnson, then, does not control our analysis.


                                         20
because the district court did not rely on the plea agreement in

setting the restitution order, we too decline to rely on it to

save an order that we have twice determined to be illegal.

     Second, while Zakrzewski agreed to pay a sum certain, he

“did not agree . . . to relieve the government of its burden of

proving that [his] restitution obligation included only those

losses   caused      by    [his]     criminal     conduct.”       United     States    v.

Patty, 992 F.2d 1045, 1051 (10th Cir. 1993) (concluding that

“although Defendant could be ordered to pay restitution in an

amount up to $25,000,000 [as agreed to in the plea agreement],

she could not be ordered to pay restitution in excess of those

losses   which      the     government      proved    were      the    result    of    her

fraudulent    acts”        (citing    United      States   v.    Herndon,       982   F.2d

1411, 1420 (10th Cir. 1992)).                As we have determined in Llamas

and Susi, the $4.2 million restitution order is based on the

losses     attributable       to     all    Costa    Rican      call     centers,     but

Zakrzewski    was     not    involved      with    this    broader     group     of   call

centers.       The        restitution      order,    then,      is     not   linked     to

Zakrzewski’s criminal conduct.

     The district court had no “inherent authority” to impose

restitution, but rather was confined by the terms of the MVRA.

Cohen, 459 F.3d at 498.               Because the restitution order is not

based on Zakrzewski’s plea agreement or his criminal conduct, it



                                            21
exceeds the statutory maximum under the MVRA, and accordingly is

outside the scope of Zakrzewski’s appeal waiver.

       Reaching the merits of Zakrzewski’s restitution claim, we

review   for    plain    error,   as   no     objection   was   raised   in   the

district court.         For the reasons discussed in Llamas and Susi,

the district court committed plain error in setting the amount

of the restitution order.         We further conclude that Zakrzewski’s

substantial rights are affected by the restitution order, and

that the erroneous order affects the fairness of the judicial

proceedings.      See United States v. Ubakanma, 215 F.3d 421, 429

(4th   Cir.    2000).      Exercising    our    discretion,     we   vacate   the

district court's order of restitution and remand for further

proceedings.



                                        VI.

       For the reasons stated herein, the judgment of the district

court is

                    AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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